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NOTES AND COMMENTARIES
CHINESE CRIMINAL LAW
COGNATE TOPICS
;>...•-
NOTES AND COMMENTARIES
ON
CHINESE CRIMINAL LAW
AND COGNATE TOPICS.
WITH SPECIAL RELATION TO RULING CASES.
TOGETHER WITH A BRIEF EXCURSUS ON
THE LAW OF PROPERTY
CHIEFLY FOUNDED ON THE WRITINGS OF THE LATE
SIR CHALONER ALABASTER, K. C. M. G., etc.,
Sometime H. B. I\L Consul-General in China.
V^iwV.
JfL'Ji — i^5«^*.N,H?^
ERNEST ALABASTER,
Of the Inner Temple, Carrister-at-law; and Christ's College, Cambridge, Advanced Student;
Chinese Customs Service.
LONDON :
LUZAC & C ;
PUBLISHERS TO THE INDIA OFFICE,
46, Great Russell Street.
iSqq.
PRINTED )!Y E. J. liRILL , AT LEYDEN.
6 0
PREFACE
To all mtents and purposes foreig7iers are
completely in the dark as to what and hozv laiv
exists in China. Some persons whose reputation
for scholarship stands high zvould deny the
right of the Chinese to any law whatsoever —
incredidle but, to my knowledge, a fact. Nor
would it be easy to enlighten them — with
their limited knowledge of the language.
Practically, however, no epitome of Chinese
Law has appeared since the days of Sir George
Staunton — 7iearly a century ago,- and his
laborious work at its very publication was
quite out of date. Some portions of the lazv
have indeed from time to time appeared —
hidden away in the magaziftes chiefly; but no
complete detailed view has been presented —
however blurred.
VI PREFACE
The present brief compilation is largely based
upon the researches of a very distinguished
student^ who i7i additio7i to a profound knowledge
of the Chinese language and people possessed
a singularly judicial intellect. Added to his
knowledge and his me^ital endowments., Sir
Chaloner Alabaster had also a lengthened
experience of the East — extending from the
middle fifties until the early nineties. During
his lifetime., Sir Chaloner^ among his other
literary enjoyments., made very many miscellaneous
notes upon the Chinese legal system and its
working., principally relating to the criminal
portion of the law., and the result not only
of study but of observation. The writer of
the notes intended to amplify and arrange
them., with a view to the publication of a really
important and comprehensive work., and had
indeed conversed with me tcpon the subject at
various times. This work would probably have
followed the arrangement of the latest edition
of the Code., clause by clause; and the operation
of the law would have been illustrated by selected
cases relating to and placed under the appropriate
PREFACE Vn
clauses. The work luould then have been
periodically brought ttp to date as occasion
required^ and zvould have served the purpose
of a book of reference both for the scholar
and the merchant. The inevitable^ hoivever,
prevented the fulfilment of this project — which
doubtless will soon be performed by others.
Believing at the moment that some effort was
better than none , / ventzcred to take the
matter in hand ojz my own responsibility.
This very brief and informal cornpenditim is
the result.
Inasmuch as I anticipate a considerable
meastire of adverse criticism., it seems well at
this stage to locate the responsibility^ and
indicate zvhcre, and upon ivhom., punishment
may jitstly be inflicted. Let me state., therefore.,
that I have rewritten., resets and reasoned the
whole; that the arra^igement is mine ; and that
I have added very much additional matter.
It may also be that in places I have 7iot
rightly apprehended Sir Chaloner' s meaning
— though to ensure accuracy the original
Chinese atUhorities have been cojisultcd by me.
VlII PREFACE
One way and another therefore, errors have
probably crept in^ and where they have^ the
blame may rightly be ascribed to me.
As regards the title. I have entitled the
book merely ^^ Notes and Commentaries", because^
tcpon the zvhole, a curb has been placed on
portentous gravity — the memoranda I have
mentioned were many of them ivritten with that
element of humour which a distinguished scholar
found not incompatible with the gravest studies.
A thing may be humorous and yet may be good
law, and accordingly I have endeavoured to
preserve, or even in a measure to add to, the
characteristics of the notes. It is a not uncommon
custom for foreigners in China to take their
picnics in temples : — ' What is this /' .• ''who
^is that?' and so forth. By this unconsciozcs
mode they acquire knowledge.
Further the volume is styled a Criminal
Law book; but the term ^Criminal Laiv has
in China a more comprehensive import than
is the case with us. The Code for instance
has a distinct division marked ojf as '''Criminal
''' La%o\ consisting of the discussion of such
PREFACE
offences as homicide^ larceny^ etc. This division
is of itself stcfficiently comprehensive and bulky :
bict the Criminal Law is not only to be found
herein^ but is also stored away in all corners
of the Code., in the Supplementary Laws., and
in atithoritative treatises.
Lndeed to style the aforesaid division in the
Code ''Criminal Law is confusing — and I
have only done so in deference to custom.
What the title really implies is that portion
of the general law set apart for the special
supervision of the ^Hsing Ptc (Board of
Ptmishments., or Judiciary Board) in Peking
— and nattLrally with a Board whose special
ftmctions are legal discipline^ the bulk of the
Criminal Law was allotted to it. It is accordingly
only by a totir de force that ^hsi^tg' (which
means simply punishment' ) can be rendered
''criminal' .
And here I feel inclined to mention the
point that Chinese Law., thoiLgh in a sense
systematic, can hardly be said to be concentrated.
I mean that for example in the Code, all the
considerations touching, e. g., any given offence.
PREFACE
do not appear under that offence — the whole
subject is not thrashed out under one head —
but on the contrary appear in multitudinous
connections. One of the objects of this work is
to attempt concentration.
In regard of the general arrangement of
the book, it may be ivell to state that I have
merely followed what seemed to me to be a
logical English system. There is no reason
why Chinese law may not be taken in a form
unlikely to impair the digestio7i of a western
reader. The Introduction gives a rough outline
knowledge of the system as a zvhole — a few
of the more characteristic features being
sketched with S07ne particidarity. In Part I
of the volume considerations specially touching
practice and procedure and the general
administration of justice are dealt with.
Chapter I more particularly exhibits and
explains details of practice and procedure;
Chapter If as its name implies, describes the
various modes of punishment and details in
connection therewith ,- by a natural sequence
Chapter III describes that important feature
XI
of the system — the commutation and mitigation
of penalties; and Chapter IV describes the
legal rights and duties and the general legal
positiofi of certain classes of individuals
employed in the administratio7i of justice.
Part II consists of an exposition of that
important factor in most Chinese cases —
relationship. The considerations in this part are
exceedingly important^ and an accurate knowledge
of them is essential to elucidate many points in
the part following. By making the part in a
measure discursive — ^•^., marriage — I believe
its gefteral tctility has been increased.
In the third part of the volume.^ specific off ences
are dealt with in a natural and simple manner.
By reason of their mass, and also on account
of the manner in which they ilhtstrate other
parts of the laio, I have given the prior
place to Offences against the Person. Homicide
in especial has been treated very . fully — but
qziite in proportion with its importance in the
general law. That portion devoted to assault.^
etc., though not lengthy, is somewhat detailed.
As regards rape ajid kindred offences , the
^
PREFACE
Chinese believe in stating plain facts in
plain words — / have treasured this belief.
Offe7ices against Property are fairly ftdly
treated ^— some portions (e. g.^ larceny and
arson) at considerable length. In due order
follow offences against the Peace, the State.,
yustice., Religion., Commerce., and Morality
and Health, hi every case the specific treatment
of a particular group of offences being preceded
by an explanatory general consideration —
often very brief., and which., again., I have
venttcred to make somewhat discttrsive.
In the Exc2irsus will be fotind a slight
view of the Law of Property, and some
interesting decisions upon the Law of hiheritance,
Trusts, etc. The decisions are practically word
for word translations, and are particularly
interesting as being typical examples of reasoned
judgments. The Appendices consist of an essay
upon the evolution of the Law of Marriage, a
curious analogy (or comparison, if it be preferred)
between Chinese and Roman Law, and a list of
Chinese works ivhich it is thought may be ttseful
to those who propose assailing this subject.
Xlll
As regards the rendering of the names of
the various Chinese offences into the corresponding
English terms — this has not always been
ail easy task. From the natiLre of things,
Chinese Law is a Law of Definition, and
zohere iii English one term ivould be sufficient,
in Chinese a score may be necessary to express
the exact significance. Good examples of places
ivJiere this diffciilty arises occur in the case of
homicide, but even in respect of so comparatively
compact an offence as perjury one term is
insuffcient, and two, from which others diverge,
are considered necessary.
As regards romanisation, this has invariably
been adopted with the names of cases ; elsezuhere
in general the Chinese characters alone appear
— but, for the iiiformation of those unacqziainted
with the Chinese langtcage, I ivoitld explain
that the translation or purport of the characters
in every case immediately precedes them.
In regard of the Chinese authorities upon
whicJi this work is based, two collections of
cases upon the Criminal Law have chiefly been
referred to — the title of the one collection
A7K PREFACE
deing 'Hsmg An Hui Lan\ and of the other
'Po An Hsii Pien . The former work is indicated
throughout this volume by the initials H. A.
H. Z., and the latter by the initials P. A.
S. P. The ^Hsing An Htii Lan has especially
been drawn upon, and exhibits and explains
in a very pleasing manner the working of
the rules laid down in the Code and the
Siipplementary Laws. Its characteristics are
lucidity and directness of expression. The
member of references made to one or other of
these collections is very great, and I have
e7ideavoured that these references shall be as
correct as possible. Over and above the two
collections mentioned, a very careful perusal
has been made both of the original Code and
of the Supplementary Lazus. The Official
(Peking) Gazette has also been refei^red to —
throwing as it does many side-lights upon the
working of the system.
I have also had occasion to refer to a few
foreign publications — stich, for instance, as
the well-known works of the late M'' T. T.
Meadows. But western aid has not been greatly
forthcoming m this branch of sinology. Some
very recent and fioteworthy work, however, has
appeared — for instance, the critical and
i7Jtportant articles in the pages of the ''^ China
''Revieiv' from the pen of M'' George Jamieson
C. M. G., lately H. B . M. Cojisttl-General in
China, and a recent publication in the excellent
' Varietes Sinologiqttes series of Sicawei entitled
''"'Le mariage Chinois'.
hi conchiding, I venture to make note here
of the obligations I am imder to that great
scholar, D' Giles, Professor of Chinese at
Cambridge University.
My yotmg co7csin, M>' C. G. Alabaster, has
been of very vahtable assistance to me, especially
in the onerotts matter of careful proof revision.
To M' F. DE Stoppelaar of Leiden I am
indebted for painstaking and finished conduct
of the printing.
ERNEST ALABASTER.
Cambridge ,
Jttne, i8gg.
TABLE OF CONTENTS
Page
Preface V
Table of principal cases . . XXXI
Introduction xxxix
PART I
ADMINISTRATION OF JUSTICE, PRACTICE
AND PROCEDURE
Chapter I
Section I — Prevention of Crime 3
Private Justice : Private Arrangement 5
do. II — Brief sketch of system of Courts, etc. 7
— informations, etc 9
Manner of considering a case . .11
Precedent 13
Evidence 15
— employment of torture . . .17
The sentence 19
— delivery and record of sentence 19
C. E. G. f>
TABLE OV CONTENTS
Page
Chapter I [contd)
— execution of sentence ... 20
Appeal 21
Section III — Superintendence and revision . .21
— revision etc. generally ... 22
— do. of capital sentences . 27
Inequality of action of Courts . . 29
do. IV — Principal and accomplice . . . .31
do. V — Absence of malice 41
Confrontation of offenders . . .41
— parties apprehended etc. within
different jurisdictions . . .41
— treatment of other parties to a
case where one party is still
at large 42
Commission of several offences . 44
— commission of another offence
after sentence pronounced . 47
Previous conviction 49
— hardened offenders .... 49
Chapter II — Punishment
Section I — Ancient punishment 52
Varieties of punishment . . . .55
— degrees of punishment ... 56
do. II — Capital punishment 57
— slicing to pieces and extinction
of the family 57
TABLE OF CONTENTS XIX
Page
Chapter II {co7itd.)
— simple slicing to pieces . . 59
— decapitation and exposure of
the head 59
— simple decapitation .... 60
— do. do. subject to
revision 61
— strangulation 62
do. subject to revision . 62
Self-execution 63
Improper execution 64
Section III — Other forms of punishment > . . 64
— transportation 64
— penal servitude 67
— bamboo 68
— cangue 69
— perpetual fetters 71
— iron bar yi
— branding 71
Imprisonment — prisons — prisoners
jailers 72
Fines and forfeitures 76
do. IV — Punishments countenanced but not
legally recognised .... 78
— exposure until death .... 78
— castration 80
Undue punishment 80
XX TABLE OF CONTENTS
Page
Chapter III — Commutation and Mitigation
Section I — General consideration 83
Commutation generally and
specially 85
Circonstances attemiantes .... 86
— delivery up to justice ... 88
— special commutation in homicide 9.1
do. II — Mental and physical disability . . 92
— lunacy 92
— delirium 96
— physical disability .... 97
Age 98
— aged offenders 98
— juvenile do 99
— manner of reckoning age . . 102
Sole representative 103
Women 106
do. Ill — Privilege and privileged classes . 108
do. IV — Acts of Grace 115
— list of offences excused . .120
— do. do. do. after
bambooing 122
— list of offences excepted . .124
Chapter IV — The position and liabilities
OF SUNDRY officials, ETC.
Magistrates' duties — official
carelessness 132
TAI5I.E OI'- CONTENTS
Page
Chapter IV [contd.)
— definition 135
Police etc. — tipaos — private
salt watchers 135
PART II
RELATIONSHIP
Chapter V
Prefatory 143
Section I — Natural relationsJiips 144
The relations of a Chinese . . 144
General influence 146
do. II — Parent and child 153
— adoption 168
— illegitimate children . . .170
do. Ill — Husband and wife 171
— marriage 172
— effect of the relationship of
husband and wife . . .186
do. IV — Other natural relationships . .196
— fathers and mothers-in-law;
sons and daughters-in-law. 196
— uncles and aunts; nephews
and nieces 198
— brothers 200
XXII TAliLE OF CONTENTS
Page
Chapter V [contd.)
Section V — Artificial relationships .... 202
Preliminary 202
Master and pupil 203
— priest and disciple .... 206
Master and servant and slaves . 207
Wet-nurse and child . , . .215
PART III
SPECIFIC OFFENCES
Introductory — Division of offenders and
offences 219
Chapter VI — Offences against the Person :
Homicide
Section I — General consideration . . . .221
— killing several of a family . 225
— limit of time 229
— effect of using fire-arms . .234
do. II — Justifiable homicide 236
do. Ill — Excusable homicide 260
— accidental 260
— in self-defence 286
TABLE OF CONTENTS ' XXIII
Page
Chapter VII — Offences against the
PERSON [CONTD.]: HOMICIDE [CONTD.)
Section I — Manslaughter 288
do. II — Murder 292
do. Ill — Suicide 303
Chapter VIII — Offences against the
PERSON {CONTD) : INDIRECT RESPONSIBILITY
FOR DEATH
Section I — General consideration . . . .320
do. II — Responsibility of junior relations 321
do. Ill — do. of others . . . .341
Chapter IX — Offences against the
person (CONTD.): ASSAULT, ETC.
Section I — General consideration 346
— limit of time 347
— definitions 348
Common and aggravated assaults 348
— common or simple assault . 348
— assault causing serious bodily
harm 349
— assault with intent to merely
kill 3S0
— fatal assault 350
— assault with intent to murder 351
— do. within a privileged
locality 351
XXIV ' TABLE OF CONTENTS
Page
Chapter IX [contd.)
Importance of weapons : significance
of 'disable', etc 352
Influence of relationship . . . .354
Section II — False or unlawful imprisonment . 356
Abusive language 356
Chapter X — Offences against the
PERSON [CONTD.]: RAPE, ETC.
Section I — General consideration 358
do. II — Rape 359
— successive rape 363
— attempted rape 364
do. Ill — Indecent assault 366
Fornication 367
Unnatural offences 368
Carnal offences contrary to natural
relationship 369
— adultery 369
— incest 370
Procuration 371
Procuring abortion 371
do. IV — Abduction 372
do. V — Protection of children . . . .381
Kidnapping 382
Chapter XI — Offences against property :
Larceny
Section I — General consideration .... 384
TABLE OF CONTENTS
Page
Chapter XI [contd.)
— the taking ....... 386
— determination of gravity of
offence 391
396
396
400
400
404
406
407
407
411
417
419
420
420
Section II — Some general varieties .
— robbery with violence .
— do. and murder .
— robbery in bodies armed and
unarmed
— robbery during riot
— substitution
do. Ill — Some special varieties .
— larceny by certain persons
— do. from certain places or
of certain objects
do. IV — Receivers of stolen property
— pawnbrokers ....
Supplementary considerations
— reparation
— violence in resisting pursuit
or arrest 420
Chapter XII — Offences against
property {contd.): embezzlement,
Arson, etc.
Section I — Prefatory . . 423
Breach of trust 424
Embezzlement 424
XXVI TABLE OF CONTENTS
Page
Chapter XII [contd.)
Appropriation 424
— Government funds etc. : ap-
propriation etc. thereof . . 426
Section II — False pretences 429
Fraud 430
Extortion 431
Personation 433
Cheating, etc 435
do. Ill — Forgery 438
do. IV — Burglary, etc 440
Arson 442
— attempted arson .... 448
Chapter XIII — Offences against the Peace
Section I — General consideration .... 449
do. II — Ordinary treatment 452
Riot, etc 452
Affray 454
do. Ill — Special treatment 459
Clan fights 459
Chapter XIV — Offences against the State
Section I — General consideration .... 463
do. II — Treason, etc 466
— high treason 466
— rebellion 467
— misprision of treason . . 468
Piracy 469
TABLE OF CONTENTS XXVII
Page
Chapter XIV [contd.)
Sedition 473
— unlawful societies . . . .475
Section III — Making, possessing, and trafficking
in arms etc 476
Unlawful dealings with public
stores, etc 479
do. IV — Postal offences 481
— appropriation of official en-
velopes for private purposes . 482
Coinage offences 482
do. V — Offences by officials 485
— insubordination etc 486
— excess of zeal 487
— bribery 487
— impressment for private
purposes 488
Miscellaneous offences .... 488
— encroachment on the soil . 488
— damaging river embankments
etc 489
— intramural interment . . . 489
— treasure-trove 490
Chapter XV — Offences against Justice
Section I — General consideration 491
do. II — Contempt of Court 493
do. Ill — Perjury 497
False accusation, libel and slander 500
XXVIII TABLE OF CONTENTS
Page
Chapter XV {contd.)
— false accusation 502
Section IV — Barratry etc 512
Escape 513
Rescue 514
Resisting arrest 516
Chapter XVI — Religion and offences
AGAINST Religion
Section I — General consideration 521
do. II — Heresy 526
— Christianity 527
Irregular procedure etc. . . .529
Sacrilege 53^
Section III — Offences by priests 533
Offences against the dead . . -534
— post-mortems 534
— making away with corpses . 535
— desecration of coffins, graves,
and cemeteries 536
— desecrating ancestral tablets . 540
— cremation 540
Chapter XVII — Commerce and offences
AGAINST Commerce
Section I — General consideration 541
do. II — Licensed brokers — commission
agents — ship-brokers . . . 544
TABLE OF CONTENTS XXIX
Page
Chapter XVII [contd.)
Trade combinations — corners . 545
Other interferences with the course
of trade 546
— strikes 546
— levying tolls 547
Commercial gambling .... 547
Section III — Mining laws 548
Copyright 548
Weights and measures .... 549
Miscellaneous 549
— illicitly quitting the country . 549
do. IV — Usury and debt 550
do. F— Smugghng 555
Chapter XVIII — Miscellaneous offences
AGAINST Public Morality and Health
Section I — General consideration . . . .558
do. II — Bigamy 560
do. Ill — Gaming and gaming houses . . 562
Pleasure houses 563
Profligacy in officials 563
Theatrical offences 564
Propagating immoral literature . 565
Witchcraft ........ 565
Poisons 566
TABLE OF CONTENTS
EXCURSUS
Notes and decisions etc. on the Law of
Property, Inheritance, Trusts, etc.
Page
Section I — Land tenure 571
— rights of water 574
— accession 574
do. II — Disposition of property ;«^r/Wi:«?/i'rt: 575
do. Ill— Trusts 587
do. IV — Guardianship of infants .... 600
MISCELLANEOUS APPENDICES
Appendix I — Evolution of Law of Marriage 609
do. II — Analogy between the Chinese
and other systems . . . .613
do. Ill — List of works for study. . .618
Index 623
Errata and Addenda ^^^
TABLE OF PRINCIPAL CASES
Page
Chang Ch'ing. . . 44
Chang Chu. . . . 297
Chang Ch'u-lao . .160
Chang Erh-kou . . 41
Chang Hao . . . $46
Chang Hsi-fa . . . 272
Chang I-kao . . .156
Chang Ken-ch'ui. . 74
Chang Lieh . . .534
Chang, Mis, nee Liu,
and Chang Tso-wen ^y
Chang Mei-an (decision
of) . . . . 580, 600
Chang Sheng-hsiang 235
Chang Ssii-hui . . 267
Chang Ta-chi . . . 545
Chang Te-yiian . . 398
Chang Wen-hsiu 323, 324
Page
Chang Wen-kuang . 37
Chang Yiian-shih i66, 226
Ch'ang An. ... 71
Ch'ang Hsiao-Hu. . 199
Ch'ang Hsiu . . . Lll
Ch'ang Ting-yii . . 148
Ch'ang Wen-hsiu {a)
— case of Privilege 1 1 3
Ch'ang Wen-hsiu {d)
— case of Indirect
ResponsibiHty. . 336
Ch'ao, Mrs, ;ur Ch'ao 248
Ch'ao Cheng-ying . 329
Ch'ao Erh . . . . 89
Ch'ao P'an-ming. . 425
Ch'e Ta .... 289
Chen Ao . . . . 337
Ch'en A-hen ... 86
TABLE OF PRINCIPAL CASES
Page
Ch'en Feng-chan . 289
Ch'en Liang-tso . . 274
Ch'en Ta-ning . . 307
Ch'en Yi, and Kuo
Ming, 306
Ch'en Yii-ch'eng. . 284
Ch'en Yii-mei. . . 338
Ch'en Yii-t'ien . . Lix
Cheng Ch'ien-ts'ai 387,552
Cheng Yii-tsai . .234
Cheng Wen-chia. . 322
Ch'eng Pang-kuei . 154
Chi Erh-chia (decision
of) 589
Chia Ch'eng . . .335
Chia Te-wang . . 26
Chiang Ch'u-t'ien . 96
Chiang Hung-fu . . 289
Chiang Li . . . .140
Ch'iao Hsi-ch'uang . 257
Chieh An . . . .534
Ch'ien Cheng-yang . 437
Ch'ih Chu-erh . . 362
Chin Sheng-chang . 551
Chin Yao .' . . .316
Ch'in Ssu-yiian, and
Ch'in Kuo-yiian . 330
Ching Chiu Kuei Wa 253
Page
Ching Lu, the maid 32
Cliing Ts'ang . . . 332
Ch'iu A-hsi . . . 284
Chou, Mis , ... 199
Chou San-erh . . . 161
Chou Tsung-sheng . 303
Chou Ying-mao . .311
Chou Yung-t'ai . .201
Chii Te-kuo . . . 338
Ch'ii Hei .... 275
Ch'ii Yang Shih Ying 540
Chu, Mis . . . .106
Chu Chin-feng . . 266
Chu Hsiao . . . .316
Chu Hua-nien . . . 232
Chu, Mis, nee Li .561
Chu Lin-cheng . . 81
Chu Mao-t'ang . .316
Chu Tao-ching . . 265
Chu Yii-Hn. . . LXIX
Chuang, Mrs . . .257
Chung, Mrs, nee Huang 94
Chung Lin. . . . 262
En Hui 439
Fan Yu-chin . . . 364
Fang, Mis .... 27
Fang Chao-tsun (decision
of) 593
TABLE OF PRINCIPAL CASES
Page
Fang, Mis, nee Yiian
161
Feng Chi-yiian . .
254
Feng Chiu-crh .
102
Feng Hai-ning .
350
Four Tsaos, the .
461
Han Kuai-erh . . .
278
Han Ssu-fu . . .
343
Heng Te . . . .
1 10
Ho Chin-li ....
243
Ho Ching-sheng .
535
Ho Ho-shang .
250
Ho Kuo-ch'a .
288
Ho Kuo-erh . . .
232
Ho Pen-ju . . . .
247
Ho T'ien-lin . . .
527
Ho Wen-k'uei . .
439
Ho Yiin, and Wang
En-ch'ang .
263
Hou Meng-pu 92,
170
Hsi Ta-kuo
240
Hsia Sheng-pa 29,
199
Hsia Sheng-t'ai .
330
Hsiao Kuang-ai .
554
Hsiao Wen-han .
311
Hsieh Te-ch'eng .
539
Hsien Hu-pen
38
Hsii, Mi's, nee Ch'iian
39
Hsu Erh . . . .
316
Hsii Erh-ch'ieh .
Page
209
Hsii Hsiao-ch'uan
LX
Hsii Lung-te .
249
Hsu Wei ... .
530
Hsii Yiian-yiian .
LX
Hsu Yun-Wu. .
91
Hu Che-yen (decision
of)
583
Hu Ch'ao . . . .
421
Hu Wen-ch'eng .
277
Hua Yung-lu .
286
Huang Ch'ang-huai .
267
Huang Chung-chao
262
Huang Hsing-chou
338
Huang Huai-kuei
265
Huang Te-hsiu .
189
Huang T'eng .
271
Huang T'ing .
304
Huang Wen-chih
278
Huang, M's, nee Yii
328
Huang Yung-tsai
259
Huo Kuei-ssti .
14
I, Mrs, nee Hsiao 29
, 200
Jen Ch'ao-tung .
369
Jen Hsiao-ch'in .
255
Jen Sheng-hsiao .
. 500
Jen Tzti-wang
. 250
Jung Ta-ch'uang.
. 162
TABLE OF PRINCIPAL CASES
Page
206
K'ai Yiieh .
Kao, the head
boatman .
Kao Chao . .
Kao Ch'eng-yun
Kao Ch'i-kang
Kao Ch'i-shan
Kao Tzu-erh .
Kao Yung-hsian:
Ko Shih-chiang
Ko Shu . . .
Ko Wen . .
K'ou Wen-yu .
Ku Liu . . .
Ku Shih-k'uei.
Ku Ssii-ts'ai .
Kuei Ning . .
Kuo Ch'i-feng.
Kuo Ching-a .
Kuo Ming, and Ch'en
Yi 306
Lai Ts'ai-yiin. . .201
Le Yeh-yiian (decision
of). ..... 595
Li, Mis 301
Li Chao-hsieh. . .335
Li Ch'i-ch'uan . . 16
Li Chia 388
410
499
180
280
335
282
344
272
263
299
535
364
212
240
316
250
351
Li Chia-shan
Li Chia-shen
Li Chiang .
Li Ch'ing .
Li Ch'iian .
Li Fa . .
Li Ho . .
Li Hsiao-sheng
Li Hsiao-yang
Li Hsin-shui (decision
o(). . . . 575,
Li Hsing-t'ai .
Li Hsiieh-hsieh
Li Hui-t'ien .
Li Hung-ku .
Li Ju-po
Li, Mis, nee Lun
Li Ming . .
Li Ming-shan .
Li Pang-an
Li San .
Li Shang-yu .
Li T'ing-chen.
Li Tso-lai .
Li Tzti .
Li, Mis, 7tee Wang
Li, Mis, nee Wang,
and Liang Shih-jung
Page
482
547
187
286
322
365
234
197
375
578
387
364
26
161
277
328
394
426
204
548
308
161
530
374
196
312
TABLE OF PRINCIPAL CASES
Li Wen-chang(dccision
Page
Of)
Li Wcn-ch'ing .
Li Yung-ch'ing .
Liang Chi-kuang.
Liang Fen-yung .
Liang Ming-an .
Liang Yung-ch'ang
Life-boat, case of the
Lin K'o. . . .
Liu Chin-Hang .
Liu Chiu-yiian
Liu Cliung-ch'eng
Liu Huang-chung
(decision of)
Liu Ken-ch'eng .
Liu Lao-kung
Liu Ssu-k'un .
Liu Ta-che
Liu Tien-yu (decision
of)
Liu T'ing-jen .
Liu T'ing-ying .
Liu, Mis, nee Tsen
Lo Chao-wen .
Lo Chin-Hng .
Lo Yen-sheng
Lu Mei ....
603
338
160
305
427
231
350
537
94
281
279
598
374
388
287
329
592
97
539
301
340
88
31
47
Lii Wcn-ming
Lu Chang .
Lu Ch'ao-fan
Lu Jui-yii .
Lu Ku . . .230
Lu Piao
Lu Wen-ching
Lung Shao-tsung
Ma Hsiao-Hu .
Ma Shan . .
Ma Yung . .
MaoTien-lai (decision
of). . .
Meng Ha Shuang Hsi
Mi Yu-fu .
Niu Chung, and Ts'ui
Kuang-chang
Ou Mei-ch'eng
Ou P'eng-shun
Pai Wu-ssii
Pan Pu-hsieh
Pao Chih-chia
P'ei Lin. .
P'ei Ping-jo
P'eng Chih-ming
Pien Liu
Ping T'ien-ming
Po Yu-nan . .
Page
513
272
190
289
273
265
404
248
62
294
18
585
322
470
33
253
3S8
330
262
LI
204
191
151
268
233
91
TABLE OF PRINCIPAL CASES
P'u Hsiao-lao . .
Shao Hsing
Shao Ming-te . .
Shen Ching-ch'iian
Shen Wan-liang .
Sheng Fu-hsien .
Shih Ch'i-ch'uan 273
Shih Li . . .
Su Ch'ao-tzu .
Su Jih-wen
Su Yu-lin . .
Sun Hsiao-lien
Sun I . . .
Sun Lan-t'ai .
Sun Mou .
Sun Shuang-hsi
Sun T'ien-kuei
Sun, Mis, and
Wang .
Tai, Mrs . .
Tan Pa Chan Hsieh
T'an Ya-chiu .
T'an Ya-fu .
T'ang Ming .
T'ang Pa-erh .
T'ang Wu-t'u .
Te Ying-o .
Teng Jung-k'o
Ml-
Page
326
209
46
6
186
285
232
162
334
37
363
160
421
154
242
339
181
181
37
159
48
161
102
170
179
272
Ti Feng-erh . .
T'ien Cheng-t'ai .
T'ien Hung-lin .
T'ien Wen-hsirig.
Ting Ch'i San Tzu
Ting Wan-nien .
Ts'ai Ch'uan-chi .
Tsaos, the Four .
Ts'ao Li . . .
Tseng Kuang-lieh
Tseng Liang-ming
Tseng Sheng-chi.
Tsou Kuo-hsien .
Tsou San-yu .
Ts'ui Kuang-chang,
and Niu Chung
Tu Lai-chang. .
Tuan Ssu .
Tung, Mis, nee Ch'iian
Tung Hsien-k'uei
Tung Wen-chung
Wang, Mis . . .
Wang Chen-wen.
Wang Ch'i-shan .
Wang Chih-pin .
Wang Ching-chou
Wang Chu-nao .
Wang Chung-ts'ai
TABLI
: 01- I'R
NCIPAl. CASES
xxxvn
Wang En-ch'ang, an(
Page
\
Weng Liu-kou
Page
. 238
Ho Yiin. . .
263
Weng Wan-lung
• 279
Wang Hsiao-shih
498
Wu Ch'i-H . .
• 273
Wang Hu-tzti .
365
Wu Ch'i-lu. . .
• 360
Wang Hua-lung . .
50
Wu Erh-tzti , .
, 106
Wang Hua-yi . . .
247
Wu Feng-ming
• 274
Wang, Mis, nee Li .
157
Wu Kuo-chen. .
. 201
Wang Li-t'ien
276
Wu, Mrs, nee Li
• 341
Wang Pu-t'ing .
367
Wu Ming . .
• 533
Wang San .
167
Wu Wu . .
• 255
Wang Shcn-ju
295
Wu Yim-ts'ung
• 362
Wang, Mrs, and M^
Yang, the brothers . 153
Sun ....
181
Yang Cheng-hsiang. 456
Wang Te-sheng 323
,324
Yang Ch'i-yiin
. 411
Wang Ts'ung-ch'eng
425
Yang Erh . .
• 446
Wang Tzu-ch'ing
234
Yang Fei-Hn .
. 281
Wang" Wen-kuang
34
Yang Ta . .
• 339
Wang Wu-pao .
270
Yang Ts'un-chen
• 36
Wang Yii-kao
. 163
Yang Wen-wan
• • 309
Wang Yu-shan .
453
Yao Te-mao .
• • 537
Wang Yu-sheng .
470
Yen Hsiao-hsii (dc
vision
Wang Yung-ch'ang
• 332
of). . . .
. 587
Wei Lao-han .
227
Yin Hsi-hsien.
• . 305
Wenchow Abductioi
1
Yu San . . .
• • 315
Case ....
. 380
Yun Ta-hsiao .
. . 561
INTRODUCTION
§ I . The first indication of Law to be found First indication
of Laiv.
in Chinese tradition is the institution of marriage
attributed to Fu Hsi B. C. 2852. Previous to that
time temporary unions appear to have been the
rule, and neither did the father know his sons,
nor the sons their father. From this date, however,
some order appears to have been introduced,
and the nation as it then existed being divided
into various clans, the law prescribed that unions
should not take place between members of the
same clan.
And so, stage by stage, from the remote Progresuon.
period of Yao, Shun, and Yii, through the
progressive periods of the Han, T'ang, Yiian
(Mongol), and Ming dynasties, until the present
Manchu rulers, as cases arose a remedy was
applied and recorded, until the law has grown.
INTRODUCTION
gradually crystallized, and now — after several
previous attempts {infra) — been systematically
arranged in the present Penal Code.
:{: H: * H= *
Aiiemfts at S 2. A tendcncv to codify may be remarked
codification. '-> j j j
throuofhout the whole course of Chinese leg-al
history — a natural effect of the paternal despotism
which has throughout all ages been the prevailing
form of constitution. As early as Shun [circa B. C.
2317) attempts were made in the direction of the
formation of some constant system, but the records
relating to this are necessarily scanty and of merely
historical interest. Fifteen hundred years later (for
centuries in early Chinese history may be lightly
omitted) a system was framed by one Li Kuei —
a system sometimes called the first regular Code
of penal laws. This work appears to have been
divided into six portions ; the first three parts
relating to practice, the fourth to the general
administration, and the last two consisting of an
exposition of offences. Again the celebrated Shih
Huang-ti {circa B. C. 221) framed a scheme
without any regard to precedent , which only
remained in force until the close of the short-
Introduction
lived dynasty some fifteen years later. It was
not, however, until the reign of Kao Tsu of
the T'ang dynasty [circa B. C. 206) that a
Code worthy of the name was drawn up ; and
this system, it would seem, was primarily and
essentially intended as a mere guide for the
convenience of judicial officers, and not for the
public at large. It is very questionable whether yi"is ^"'^ Code.
a Code in the proper sense existed before Yung
Lo of the Ming dynasty {circa A. D. 1403);
but during the reign of that prince the well-
known system was framed upon which the present
Code has been orafted.
fc>
§3. The collection of laws known as the Tai^^^e'-Tacicins
. . '•Lit LP.
, Ch'ing La Li ^ ]r ^ 'PJ , forms the Code
of the present dynasty — the Lii being the
original Code published when the dynasty was fully
established in power and based largely upon the
system of Yung Lo {supra)., the Li the subsequent
statutes enacted from time to time. Many of the
Lii are those of the previous dynasty, adopted
and re-enacted by the Tartar Princes: others
(such, for instance, as those affecting the Tartar
XLII , INTRODUCTION
population) date back merely to the commencement
of the dynasty. Sir George Staunton has translated
the L'u, but as he omits the Li, his work —
valuable as it is — gives an insight merely into
what the Laws of China were two centuries and
a half ago, and not what they are at present.
The Code, it may be well to mention, is not,
in its essence, a dynastic, but a national institution :
moreover the head of the State in leo-islatinor
afresh and making the Li may not follow the
dictates of his own arbitrary will, but, on the
contrary, must obey certain general principles
well-known to the country at large.
The collection is accompanied by a running
commentary, published by Authorit}% and notes
of equal weight explaining the meaning of doubtful
phrases. Every five years a fresh and revised
edition is published by Authority — as few as
possible variations being made.
hi deciding cases, the Code furthermore provides
that maofistrates shall take cooriizance of cases
which have been referred to Peking for consideration
and published by the Judiciary Board there — under
the name of cJien a7i ^ ^ — for the guidance
INTRODUCTION
of the Provincial Authorities — which decisions
are destined to be eventually embodied in the
supplementary laws, but are given effect to before
being actually so embodied.
The laws are divided into six divisions,
corresponding to the six Boards at Peking, and
they are further supplemented by the LiiL Pu
Tse Li ^ ^ ^Ij f^J — i.e. the Rules established
by these offices to regulate the practice in regard
thereto.
The Code is very full in respect of that portion
of the Criminal Law touchinof offences apfainst
the Person, but singularly meagre with regard to
Commercial Law, which practically seems to be
left to the regulation of the local guilds — the
latter bodies determining between themselves all
questions of contract, insolvency etc., according
to the prevailing rule or custom of the trade they
represent.
S 4. The distinction between the Lu ^ and dis tine Hon
" between Lu
the Li i?IJ seems to need some further explanation. '^'^^^ ^^'•
The Z?/, then, are the fundamental Laws which
never change: the Zz, the special Statutes
INTRODUCTION
supplementar}' to the original Code, which modify
the legal treatment originally specified, and which
are themselves subject to constant additions and
a decennial revision. No Lii are made, but
where it is found necessary to provide for some
unforeseen contingency a Li is established. Thus,
at one period it was desired to stop the export
of silver ; and accordingly, in the first instance a
Li was made, declaring the export of silver,
like that of gold, iron, sulphur, etc., to be
contraband ; subsequently it was declared that,
inasmuch as merchants evaded the law by melting
down their rough sycee and recasting the metal
into dollars, the coinage of dollars was an
offence against the contraband regulations. The
result was in short attained by means closely
resembling a fiction, for it was impossible to
forbid the export^ the law declaring it lawful to
pa)- for foreign goods either in sycee or in
dollars.
Quotations § 5- The distinction between the Lii and the
Li is further well shown in the following
quotations — touching chiefly the Criminal Law.
INTRODUCTION
'The Law never changes, and the Statute
'adapts the Law to the time and circumstances'
s # ^ - ^ >P # f ij aij ^ B# 1 fi
(H. A. H. L. Supp. vol. XIV. p. 63).
'As where the Law was originally mild, and the
'Statute renders it the more severe or vice versa
firfiifij^g^ (id.)-
'So, in cases of robbery where in resisting
'arrest the thieves kill or wound anyone, by
'the Law no distinction is made between principal
'and accessory, and the sentence is in every
'case decapitation subject to revision' ifl ^P
^^-t^dSiifffl (Id.).
'But the Statutes (herein) distinguish between the one
'who kills and the one who wounds — the former the
'principal, the latter an accessory — and furthermore
'in cases of wounding, between injuries from cutting
'instruments, and blows, hacks, etc., specifying
'different penalties for each' ffp f?lj ft i'J ^
^^n,\^mz^»mm^'^\ m(id.).
INTRODUCTION
'In fine, the Statutes as the}^ stand differ materially
'from the Law in their definitions of offences'
;i a ft ^ 01] !i M # ft IP =« 7^ H (id.).
And 'you cannot quote the Law in reference
'to the Statute without confusion' @ >P ^ W
« t # ii ^ li i© (^d.).
Practical ex- § 6. Thus the Law defines a crime, and the
emplification of ......
distinction. Statute distinguishes its gravity or comparative
unimportance in relation to the attendant
circumstances. For example the Law defines the
crime of assembling people for illegal purposes,
and prescribes the penalty : the Statute distinguishes
between an assemblage of ten persons, and one
of twenty, and prescribes the measure of punishment
in either case.
Where both the fundamental Law and the
special Statute apply, the Statute is always to
be taken as the guide. On the other hand,
where neither the Law nor a Statute fits the
case (precisely), the latter is to be brought
under some law applying to circumstances of
like nature; 'but in doing so. Fundamental Laws
'are to be applied — and not, by forced construction ,
INTRODUCTION
'some Statute of greater severity' O O O 'fe
J:|: ? I # ^ ^jf « K pT J:li ? I M # ^ #
W:^\^^[MMZP\' In other words, in
these cases the Law will be preferred to the
Statute.
§ 7. The relationship between the Lu and Relation in
^ T • ^ rr • 1 . . '^ meastire
the Li has some amnity to that existing comparable
between the old Common and Statute Law of existing be-
England, but does not exactly correspond, in Common ^and
that the Lil of each dynasty is generally identical
with that of the preceding one and is a written
Code, and further that the Statutes though
practically adding to or abrogating the Lil^ are
considered as secondary to and within it — as
bye-laws are within the charter under which they
are imposed.
§ 8. The distinction just noticed is the outcome Reason for
. . . Ml 1 • • distinction.
01 a desire to reconcile law and justice — a
desire expressed in certain maxims about to be
alluded to, and not capable of realization with
INTRODUCTION
the machinery supplied, by reason of a subtle
conflictino- force.
t>
Desire that hnv e q jf jg gaid that 'if the Law does not
and justice "
coincide. 'provide a remedy for injustice, one must be
'found.' It is not appropriate that two cases
exactly similar should be decided differently
because no clear ruling is laid down in a Statute
If P * # * ffi El {^J « BJ ^ ii -^
Impossible ''<' ^ |ftt . This secms plain enough, but in practice,
in direct infraction of great legal principles and
maxims, it has been found an impossible standard
to attain to.
Application of The principle is laid down that 'in all ages
principle that
the person /j 'the persou has been considered more important
more unpo, ^«^ .^^^^ ^^^^ property' AMI^^4^'6'^Jt 1^;
tha7i property.
aft example. . . . i i i
but in practice, it appears that a robber who
kills or wounds the owner of propert)' is more
severely dealt with than a person who kills or
wounds the protector of an unvirtuous woman.
In a discussion upon the point, with a view to
rectify the anomaly, the Emperor himself directed
a remedy to be found, on the ground that 'the
'Law lays down great principles and the Statutes
INTRODUCTION
'accommodate these principles to human nature'
^MiK&M )fi A tra — contending that it
was not just that whereas it was worse to steal
a woman than to steal property, yet a robber
who wounds his victim will be sentenced to
death, while in the other case the offender will
but receive two degrees more punishment than
the ordinary penalty. The Judiciary Board was
of opinion, however, that nothing could be done.
§ lo. Too great a desire to draw distinctions z>^^/;y fo drmv
- , , - 1 i^i • r distmctioits a
is one oi the blots on the Chinese system oi Mot on Chinese
■\ -( c • r 1*1 rr system and fatal
law. in tact emanating irom the wish to enect to combination
the combination of law and justice, the practical yf„^/^.^'"^
result of this desire has been fatal thereto. Murder
to an Enoflishman is murder whoever the victim
may be; but Chinese jurists say it is not right
that the punishment for raping and causing the
death of an unchaste woman should be the same
as that for raping and causing the death of a
chaste one M ?M ^ ^ ^ ffi ^ S A * ^
INTRODUCTION
The process % \\, The dcsirc to attain perfection is further
of revision ^ '■
favoured: a x^q^x practically exhibited in the process of revision
ample of de- 50 favoured Under this system — the process by
sire to attain
perfection, which many a case is fully investigated by a
lower Court, and the results of this research in
a manner 'checked' by the higher powers. This
process probably finds its most liberal expression
in connection with the Criminal Law : its manifest
defect is a certain loss of time and waste of
energy.
Conflict of §12. A very practical difficulty that the
Chinese and
Tartar laws Government has to contend with is the divergence
a difficulty
and between the Tartar and Chinese laws — a result
of tactful concession on the part of the Manchu
conquerors to their Chinese subjects. It is somewhat
amusing to see the feeling exhibited by the
Judiciary Board when a question arises on which
the two Codes clash ; for example, the case in
which the knotty point had to be decided —
are mules and donkeys catde.? The Board
declined to say : they had nothing to go on : they
knew nothing about Mongolia and its special
laws and customs, and could venture no opinion:
INTRODUCTION
'let the Li Fan Yuan 38 *^ ^ (the Mongolian
'Superintendency) decide.'
Nor is the difficulty an imaginary one. If the '^^^^^'^ '■'''^- "'''''^'
Tartars claimed that Tartar Law should hold in
Tartary, while Chinese Law was permitted in China,
then things might, it is true, be accommodated : but
mixed up in both countries as the Chinese and
Tartars now are, it is inconvenient, to say the
least, to have (as in fact often happens) to apply
two Codes to the same case — with the result,
that of two criminals equally guilty of the offence
charged, the one escapes with a whipping, and
the other, besides being bambooed, is transported
for life. The Chinese insist on eve7i justice ;
and with unequal laws , it is impossible to
obtain it.
§ 13. There seems, however, some doubt as/Joui/ as to
VIM- r T^ T applicabiUty of
to the applicability of lartar Law to cases Tartar Law
which occur within the Eighteen Provinces (as Provinces.
distinct from the rest of the Empire). Thus in
the case of Pao Chih-chia i@ H 5* 1 where
the parties were Mongols , the Board laid
down the principle , that the question as to
INTRODUCTION
which law was applicable depended upon
whether the offence was committed in Mongolia
or within the Eighteen Provinces (Chihli being
the province in the case in point). In the same
Special ^^«-case, the Board also ruled that the special laws
homcdaii laws
relate to i>/^a- relating to Mahomedans applied to Mahomedans
homedans only.
only, and not to Chinese concerned with them.
So if two Mahomedans and a Chinese commit
a robbery , the Mahomedans , under the
Mahomedan law 'where three or more
'etc.', incur the penalty of military servitude,
and the Chinese, under the Chinese law
'where several persons are concerned etc.',
incur transportation only (P. A. S. P. vol. XVI.
p. 35 ; V. also the case of Ch'ang Hsiu ^ (ZJ
P. A. S. P. vol. XIX. p. i).
* * * * *
Predominance § 1 4. As here the law prevails. Every Chinese
is within the law, and though it is true that
certain classes and individuals are for different
reasons treated more tenderly or, it may be,
more severely, than others, this is a perfectly
legal treatment prescribed by and incorporated
in the system. Furthermore, in regard of the
INTRODUCTION
Code itself, because one part is entitled ritual
laws, another military laws, and so forth, it must
not be supposed otherwise than that this is a
more classification which has gradually arisen
for the sake of convenience. Common principles
of Chinese law — e. g. relationship — 3-Pply
throughout the system, and though special
circumstances have of course in numberless
instances gradually compelled the alteration or
modification of principles , this natural issue
has been attained tlirough the ordinary legal
channels.
§15. There is a special practical phase of La-^ Uitoio-ant
ofintcrfcrciice.
the subject deserving attention — i. c. the absolute
sovereignty of the Law within its own realm ,
and its instant repression of encroachment. The
question most often arises in connection with
the military — military interference is not tolerated. Military inter-
ference 7lOt
Thus a sergeant one day, while on his rounds, tolerated^ for
caueht a eambler, and instead of handinor him
over to the magistrate for punishment, he ordered
his captive to be flogged on the spot — and the
latter, being in a poor state of health, died in
example.
INTRODUCTION
consequence. For this, the sergeant was sentenced
to one hundred blows and three years'
transportation ; and — which seems harder — the
soldiers by whom the flogging was administered
were sentenced to ninety blows and two years'
transportation (H. A. H. L. vol. LX. p. 7).
And in another somewhat similar case, another
sergeant was sentenced to the same penalty
as the former — although the man beaten
hanged himself, and did not die directly from
the flogging. It was most clearly stated in
this latter instance that the serofeant was a
military officer, and had no jurisdiction in a
civil case (H. A. H. L. vol. LX. p. 8). The
ground of the grievance, though remaining the
same, may find a different expression. So in a
case where a corporal received one hundred
blows and three years' penal servitude for
beating a sleeping sentry with his watchman's
pole — whereby the sentry died. The grievance
herein was twofold: — he did the act himself
i ffl 3;«1 S $4J I? # i^ , 'and a thief-
' catcher's pole is not a legal instrument with
'which to inflict punishment' ffil |i/ t§ ^ ff-
INTRODUCTION
iS ffl WJ ^ (H. A. H. L. Siipp. vol. XVI.
p. 44).
S i6. Some attempt at the substitution Q{spcdai concur-
^ ■"■ rent military
martial for the ordinary leo-al tribunals may perhaps Jurisdiction is
no exception to
be discovered in that section of the Code which rule.
provides that in the case of certain offences by
military individuals and under certain circumstances
a military officer may exercise a concurrent
jurisdiction with his civil comrade {v. Part. I —
p. g). For the legal archaeologist this is an
interesting enquiry : the practical lawyer will see
that the treatment is a perfectly legal one ,
prescribed by and incorporated in the Code ,
and subject to all the ordinary rules of
Chinese Law.
.1: * * * *
§ 17. There is, however, a characteristic The Chinese
r ^ /-^^ • ^• 1 • 1 • i family and
feature of the Chinese polity, which might, at -dan system.
first sight, be considered to be antagonistic to
this legal sway.
As is well-known, there is a considerable
amount of local self-gfovernment in China, hi its
simplest form, there is the self-government exercised
INTRODUCTION
by the head of a family: from this has been
evolved the self-government exercised by the head
of a clan. The authority of a parent or grandparent
is, touching family matters, paramount within the
famil)-: and as the family increased in numbers
and became a clan, the authority passed to the
most capable member — usually a liter atus.
So we find throughout China groups of persons
Not antago/iisiic subjected to a very real local authority. But the
to the supremacy
of the law. effect of this liberal admixture of local orovernment
upon the general system has been misconceived:
it is commonly supposed to have all the force
of an imperiu7?i in iniperio. The famil)' or clan
is, however, much in the position of an English
corporation : with powers, within certain limits^
to frame bye-laws : subject to have its local
regulations^ construed by the ordinary tribunals:
and liable to the ordinary law for exceeding its
powers. As the innermost of two concentric circles
is of necessity bounded on all sides by the
outer, so is the family or clan circle encircled by
the law.
INTRODUCTION
§ 1 8. Nextly as regards a wide reaching effect Chinese apathy
of diis legal dominadon. A subject of horror to cHnu a legal
foreigners is the apathy with which Chinese '^ '
generally will stand by and see offences committed.
It may be pardally true to explain this away in
the usual manner by attribudng it to languor \
but it would be more correct to say that it is
due to fear of the Law. It is laid down that
persons must not interfere unless they have a
right to do so by reason of relationship {q. 'v.)
or otherwise {v. Principal and Accomplice —
end). So in a case wherein two ruffians attempted
to ravish a certain man's wife during his absence
from home. A neighbour and some friends, attracted
by her cries, went to her assistance, and one of
them stabbed a ruffian — who turned quickly upon
his assailant, but was thereupon knocked down
and killed. The Governor, on the case coming
before him, decided that the act was perfectly
excusable; but the Judiciary Board insisted upon
the man getting several years' imprisonment ,
on the oTfound that he had no rig-ht to interfere
and also, apparently, that after the ruffian had
been knocked down his assailant (not content
INTRODUCTION
with his knife) had struck him with the weapon
he wrested from him.
Political expe- S I Q. There is however a force which will, if
dicncy nattirally
oven-ides law. need be, override the Law ; for it is provided
that the Law may, and indeed must, be modified
if political expediency so requires. Thus in a well-
known case concerninor the ranoinof of bannermen
in Hi it was laid down that these favoured ones
may trap and wander from place to place, feeding
their herds and, provided they report themselves
within a year, their name will still be retained on
the roll — although the law runs to the contrary
(H. A. H. L. Supp. vol. II. p. 8). The reason
is clear : these men are enabled to make a
living and become good shots — their predatory
instincts are satisfied, and their services will be
at the disposal of the State in future need.
Chinese policy not § 20. Though however a legal spirit is prevalent,
encottragins^ to
growth of pro- the. Chinese system does not seem favourable
fessional class. ^ r r • i i • i •
to the growth ot a proiessional class trained in
the law — indeed it seems to be the policy to
discoerage any such result. No counsel appear
INTRODUCTION
in a Chinese Court. There are no persons
corresponding to solicitors. There are, however,
individuals somewhat answering- to licensed notaries,
and whose business it is also to prepare any
statements or petitions that may be necessary.
These individuals are styled tai sJiu 7^ ^ , and
are admitted to the position after undergoing a
formal examination held by a magistrate at his
office. There is also a respected class of bookmen
styled shih 2, who pass their days with forensic
problems, and whose assistance the officials
occasionally require. But the existence of the latter
class is of a semi-official nature : and touching the
former class, even the mere preparation of statements
etc. (although by licensed persons) is not welcomed.
So in one case a person was sentenced to three
years' transportation for merely drawing up six
several petitions for six different clients (z^. case
of Ch'en Yu-t'ien K I BQ H. A. H. L. vol.
XLIX. p. 70) : and in another instance a similar
penalty was inflicted on the offender — although
he was over seventy years of age — for also
merely drawing up five petitions — absolutely
innocent in themselves {v. case of Hsli Hsiao-
INTRODUCTION
ch'uan ^ »^ ^ id}j. Advocacy, too, would
seem to meet with no favour, a well-known
instance being that of a scholar named Hsii
Yiian-) iian f^ K 5s , who was sentenced to
two years' imprisonment and eighty blows of
the heavy bamboo, for trying to bring a criminal's
offence to manslaugrhter instead of to murder
(H. A. H. L. Supp. vol. XVI. p. 30).
Natural tancity §21. It naturally follows that since the practice
of Ic^al liici'a-
ture. of the Law is not greatly encouraged the incitement
to write treatises thereon is comparatively poor:
there are indeed few publications exactly resembling
our own Law Reports, published by Authority,
and reviewing every case of interest. The most
vital cases are, as has been shown, published
— but scarcely in our sense, and certainly not
for the information of the 'profession'. Private
enterprise has not however been utterly damped,
and such reports and commentaries as do exist
reflect much credit on their writers and exhibit
considerable acumen. Especially is this the case
with the Criminal Law, regarding which there
INTRODUCTION LXI
exist many voluminous collections — frequently
published by Authority (infra).
§ 2 2. This short-sighted policy has reaped, Effect of policy.
and is reaping, its fruit. With a nearly perfect
system, the Chinese have few who thoroughly
understand its 'inwardness'. The Code does indeed
provide that a yearly examination shall be held
of those whose duty it is to administer the law,
and such an examination is apparently in theory
of a searching nature; but how can an examiner
examine, or an examinee be examined, properly,
when their knowledge of the subject is confined
to a sudden acquaintanceship thereof at very
probably an advanced age? It is not to be
thought that the system does not work well
under the circumstances^ but it does not work
as well as was intended, or as well as it
would work under more enlightened supervision.
•p •!• •!• •!» -I*
§ 23. Having^ thus briefly examined the source, ^^viezv of the
Criminal Law.
the State, and the general effect of the legal
atmosphere in China, it remains to examine in
INTRODUCTION
slightly further detail a few peculiarities of the
chief component thereof — already touched upon
incidentally. The term 'chief component' is used
advisedly, for a marked peculiarity is the fulness
of the Criminal Code, and the almost entire
absence of any exact system with regard to Civil
cases ; and whereas it is extremely difficult to
find authorities in regard of the innumerable
questions of civil rights and laws of property,
there are numerous collections of leading cases
illustrating the Criminal portion of the Law and
accompanied by valuable commentaries ^ ^
h not so had as § 24. As regards then the Criminal Law of
paint c( . ^^ Chinese, although the allowance of torture
jn the examination of prisoners is a blot which
cannot be overlooked, although the punishment
for treason and parricide is monstrous, and the
punishment of the wooden collar or portable
pillory is not to be defended, yet the Code —
when its procedure is understood — is infinitely
more exact and satisfactory than our own system,
and very far from being the barbarous
INTRODUCTION
cruel abomination it is generally supposed to be.
The punishment for every serious offence is For example.
fixed with absolute certainty ; and mitigation (where
there appear to be circonstances attemtantes)
is left, not to the judge, but to the Judiciary
Board — appropriately styled the Supreme Court
for the Revision of Sentences, and commonly called
by foreigners the Board of Punishments.
The position of a judge in a Chinese Court ^''^'^^''''; of a
judge a strange
is certainly, according to our ideas, a strange one.
one. The judge in criminal matters has nominally
no latitude. He has to determine what the
facts are, and what article of the Code those
facts agree with. The Code, then, constitutes of
itself an impregnable barrier to any expansion
of authority, and — it must be admitted — an equally
impregnable barrier to the growth and application
of forensic genius.
§ 25. One clear advantage, however, of the The Chinese
. ... method here-
Chinese method in this matter is its inherent in coiisistent:
, . , . examples.
consistency — a point on which it may be
advantageously contrasted with our own system.
For example, there are in England only three
INTRODUCTION
categories of homicide — felonious, justifiable, and
excusable — and, e. g.^ the amount of punishment
for manslaughter is left to the decision of the
judge. In China there is a special article for
every known form of killing, and, where the
case does not seem to exactly fit any of the
precedents, provision is made for a conviction
under the clause most nearly approaching the
circumstances — the punishment being either
increased or diminished by the Board as justice
seems to require. For instance, among the
various forms of killing, there are : — deliberately
planned killing i?wu ska ^ ^, killing with
intent to kill hi ska ^ ^ , killing without
intending to kill the person killed wu ska |i| ^ ,
killing in course of an affray tou ska ^ t^,
killing by utter chance shih sJiou ska y^ ^ ?^ ,
etc. etc. etc. To each of these varieties a
different penalty attaches : and if there should arise
a case of killing containing novel features,
the circumstances will be considered in view
of the stated form of killing most nearly
applicable.
INTRODUCTION
§ 26. To attain consistency in the penalty, s^""dard of
the Chinese jurists have found it convenient at
the outset to use some definite standard
therefor. Accordingly in homicide each case
thereof is in effect reduced to one of the
three primary denominations of the offence —
i. e. killing deliberately, killing intentionally, and
killing casually; and the proper denominator
havinor been obtained, the case is made somewhat
better, or somewhat worse, in accordance therewith.
And so of other offences; as for example, robbery,
embezzlement, and swindling etc. — where each
case is in effect reduced to the standard of
simple larceny, somewhat better, or somewhat
worse, according to the circumstances.
* * * * :i:
§ 27. In regard of capital sentences, it is to Capital sen-
tences most
be noted that the sentence of death though often not
carried out.
recorded, is in innumerable cases commuted as
of course to terms of penal servitude, transportation
to lesser or oreater distances from the offender's
native place, imprisonment, or even fine. Two
instances may be given where no penalty is
inflicted : — (aj utter accident unavoidable by
LXVI INTRODUCTION
any exercise of sight or hearing (an obvious
case): (b) the killing by a husband of his
wife and her paramour at sight.
* * * * *
Capital pitnish- §28. And the manner of death varies. So in
7ncnt varies in 1 • 1 1 1 1
kind. treason, the parricide, or murdering a husband, the
prisoner is sentenced to what is called the 'lingering
'death' of being cut to pieces: in grave cases of
treason the sentence may be aggravated by reason
of the prisoner's relations being involved in the
penalty of the crime — when the punishment is
extirpation of the entire family (children under
the age of puberty, who are emasculated, alone
excepted). Again there is the punishment of
immediate decapitation coupled with exposure of
the head : immediate decapitation without more :
immediate strangulation.
But it must ever be borne in mind that few
of these sentences are actually executed, for in
nearly every case a capital sentence must, before
it is carried out, be submitted to the Board at
Pekinof for revision.
INTRODUCTION
S 2 0. There are also many other forces which forces tending
to mitigation.
tend to mitigate the rigour of the law — e. g.
questions of privilege, of circumstances, and
extraordinary measures, such as Acts of Grace.
Thus if an official or a sole representative of a
family commits an offence, he may be excused,
and will certainly be treated leniently ; and an
offender actually undergoing punishment, such as
a convict serving his sentence of penal servitude
or of banishment to a penal settlement, may
live in hope that his punishment will be reduced
or remitted under an Act of Grace — a measure
of frequent occurrence. Indeed this pleasing
possibility extends to an offender considered
worthy of death fP ^E» J8 ^ and so sentenced
{v. Acts of Grace).
§ 30. The death penalty is not confined to Capital penalty
not confined
treason or murder — rape, kidnapping, robbery to treason or
with violence or of chattels of more than a certain ampies. '
pecuniary value are all so punishable. Until the
year following the Tientsin massacre in 1870
(although the law on the point was practically
a dead letter) Christians who after having recanted
INTRODUCTION
and been pardoned relapsed, and members of
certain secret societies, were, when discovered,
treated as rebels, and meted out summary
justice.
* * * * *
Accessories in §31. On the Other hand, accessories to murder
capital cases.
are not visited with the death penalty — unless,
indeed, they be pirates or brigands, or where
the crime is, in Chinese Law, particularly atrocious.
Thus, if half-a-dozen persons be engaged in the
killing, and it is uncertain who struck the fatal
blow, the first striker is held to be the principal.
In a deliberate murder, the planner, if he took
any part in it, is the principal — and one life only
is demanded for the one life taken. Indeed the
principle of life for life is so far carried out to
its logical conclusion, that if one of the accessories
should chance to die in prison, the sentence of
the man held responsible in the first instance is
commuted.
Law perhaps § 32. In general, then, the Chinese system
less Draconian
than ours. may be characterised as less Draconian than
our own ; but in some cases it is more severe.
INTRODUCTION
The Law distinctly discourages 'larking-', and
indeed games generally ; and not only are the
parties held responsible for accidents occurring
in dangerous sports like fencing, boxing, or
wrestling, but there is a case quoted in which
three men playing at horse manage to tumble
over in a heap on the roadway - — and one of
them, falling on the brassbound pipe in the pocket
of him who lay undermost, was thereby killed.
The Board declined to allow the case to be
dealt with as one of misadventure, and insisted
upon the smoker being sentenced capitally.
An amusing case is that of Chu Yii-lin :^ 3S l|^ '
where a Doctor of the Hanlin Collegre was
found guilty of the dreadful deed of making
merry with some friends amid wine and music
durinor a time of mourninof- The Doctor was
sentenced to be bambooed, and to be stripped of the
robes of his degree (H. A. H. L. vol. VII. p. 28).
^ ^ ^ :i: ^
§ 33. In closing this brief introduction, a few Weak poinis of
1 1*11 1 1-1 ^^^'^ system as
general words might be expected touching the a whole.
weak points of the system both of the law and
its administration, as a whole. The subject has.
INTRODUCTION
in a measure, and incidentally, been discussed ;
but in point of fact in searching for the defects
of a system like the Chinese, a dryasdust enquiry
of the Code and Supplementary Laws is not
recommended, nor should too great attention be
directed to a self-evident administration. Palpable
defects may be discovered by the former enquiry,
and possible shortcomings by the latter : but
what drawbacks there are will be found
To be found in to be duc — in great part — to certain
innate features ^
ofthepoiity— innate and longstanding features of the polity.
for example, . i • i i • • -i
responsibility ror lustauce, there IS that characteristic evil —
for the occur- , ^ ., .,. ^ ,
rence of crime, the system oi responsibility lor the occurrence
of crime. In speaking of local self-government,
it was stated that the favour entailed upon the
grantees corresponding liabilities. The powers
conferred must not be exceeded. But in addition
to this natural and complementary liability there
is a wider responsibility. Thus the head of a
family is held responsible in a measure for the
occurrence of crime within the family ; and so
also, in varying degrees, are the other members
of the family. A similar responsibility attaches
to the head or meml)ers of a clan. So, in time,
INTRODUCTION LXXI
the responsibility has been attached to officials —
who vis-a-vis those within their jurisdiction are
somewhat in the position of a senior relation.
Thus has become firmly rooted a characteristic
and not very admirable feature of the Chinese
system.
§ 34. Obviously, as has been noticed by many ^^''^-f ^f tf^<^
rcsp07isil>le
European observers, the effect of the system of system.
responsibility has been, upon the whole, extremely
prejudicial. As one writer puts it : — ^Hess will
''''be heard about crime ^ but more ivill exists
Two evil results are indeed at once evident.
Firstly, proceedings touching crime will be quashed,
if possible; secondly, the personation of the real
offender by another will be permitted. Both of
these contingencies frequently happen, have for
long happened, and — notwithstanding Imperial
decrees to the contrary — will, under the system,
always happen. It is interesting to notice how
at various times the Imperial Government has
endeavoured to check any extension of the
doctrine — as in the well-known edict of the
1 8*^^^ year of Chia Ch'ing, where, in answer to
INTRODUCTION
a memorial, a proposal to make additional
regulations holding magistrates responsible for
grave cases of violation of filial duty was
refused.
The defect of responsibility has been instanced,
both as being characteristic and wide-reaching,
and there are, of course, other blots of the
same nature — generally extraneous to the
stated law , but closely concerned with its
administration.
Chinese system as § 35- On the whole, however, the Chinese
a loholc rather , , - , , . ...
fl^«/yVr//o;-flr/- system, both oi law and its administration, may
miration than-, f ■, ii-.i -iii !••
ridicule. t)^ sately regarded with considerable admiration.
In addition to some positive evils, there are
dangerous inconsistencies, and many absurdities
— again, generally extraneous to the stated
law, and concerning either the construction thereof,
or positive administration. The absurdities are,
in their way, not less dangerous than the
inconsistencies — for it has always been the
custom never to take Chinese matters seriously.
PART I
ADMINISTRATION OF JUSTICE, PRACTICE
AND PROCEDURE
CHAPTER I
SECTION I PREVENTION OF CRIME PRIVATE JUSTICE ETC.
It is first necessary to deal with these two
preliminary considerations.
PREVENTION OF CRIME
It is commented on in our law books that it
is an honour, and almost a singular one, to our
English laws, that they furnish a title of this
sort — that there is provision in them for
obliging persons whom there is probable ground
to suspect of future misbehaviour to stipulate
with and to give full assurance to the public
that such offence as is apprehended shall not
happen.
It will surprise European readers to learn that
this honour is shared by the much despised
Chinese. Indeed the practice is wider than with
PREVENTION OF CRIME
US, it beintr in the power of a magistrate, in
an)' case where he is led to think it desirable,
to make suspicions characters give security for
their good behaviour, and to compel their relatives
or neighbours to become responsible in seeing
that they will carry out their undertaking. The
document takes the form of a bond, somewhat
answerine to our recog-nizance.
No specific sum of money is mentioned in the
bond — the punishment of fines, although it may
be shown to exist, beine looked on with disfavour
— but it is the duty of the bondsmen to watch
the principal, and, if there be occasion, hand him
over to the Court for safe keeping — under penalty
of being held parties to the offence committed
by him and punished as accessories thereto.
Nay, without a special bond, the wardsmen
and iipaos are bound to give information, or, if
need be, arrest and give over to the authorities
all l)ad characters within their ward whom there
is reason to suspect.
The same responsibility attaches to parents and
heads of families, with regard to those related
to them, being within their influence.
PRIVATE JUSTICE
Foreigners judge of Chinese Law by the trading
towns where they reside, and where a large floating
population drawn from every quarter of the Empire
makes the maintenance oforder particularly difficult;
and where, moreover, the power and influence of
the mandarins is further crippled b)' constant foreign
interference. Strange as it may seem, however,
there is far greater security for life and property
in the majorit}' of Chinese towns and villages than
in our metropolis.
PRIVATE JUSTICE : PRIVATE ARRANGEMENT
Private justice. — A person may not take the
law into his own hands, but the law will take
into consideration the fact that the person had
wrongs to avenge. To kill a thief, therefore, is
merely considered as killing without warrant of
the law, and although the penalty incurred is
capital punishment, unless the circumstances are
very aggravated, the sentence will not be carried
out. Indeed, if a person kills another to avenge
his father or grandfather, he will in the first instance
only be sentenced to transportation. But the person
PRIVATE ARRANGEMENT
who so kills must have failed to get justice at
the hands of the law. If the slayer of such person's
father or grandfather was justified in so slaying,
and has paid the penalty by law imposed, the
son must not kill the slayer ten years afterwards
— if he do so, the plea for commutation will
not be admitted.
As the Emperor Ch'ien Lung remarks — "the
"object of law is to avoid the necessity for private
"vengeance, and, law once satisfied, it would never
"do to allow the individual to take further action."
In the case of Shen Wan-liang ijl ^ ^ ■> ^^^^
prisoner's father was killed while in the act of
thieving, and the prisoner on reaching man's estate
killed the slayer, although the latter had expiated
the offence by serving his term of penal servitude.
The plea for commutation was not admitted.
Private arrangement. - — An offence touching the
public once committed, a private mutual arrangement
of the involved parties to hush up or compound the
same, in neglect of the Courts, is illegal, the person
whose offence it was sought to compromise becoming
liable to an aggravated penalty for the substantive
offence, and the other party in general to a penalty
BRIEI" SKETCH OF SYSTEM OF COURTS
less than the above by two degrees. Thus, if the
compoundino- or subornation be of a capital offence
^ ^^ ^ ^»n , the suborner becomes liable to a
penalt}' less by two degrees than the aggravated
capital penalty.
The Courts will, however, in ordinary cases often
direct a party to 'pay up and settle the matter'
W ^ !^^ fe ^ M^ 1 to 'apologise and make
'compensation' fo /jjg yC M\ , or to 'pay something
'to stop the scandal' |^ ;|S ^ M^ '■ otherwise,
indeed, the attention of the Courts would be
taken up with unceasing trivialities.
SECTION II — ■ BRIEF SKETCH OF SYSTEM OF COURTS ETC.
MANNER OF CONSIDERING A CASE PRECEDENT
EVIDENCE SENTENCE APPEAL
BRIEF SKETCH OF SYSTEM OF COURTS
In regard of the channels through which justice
is administered, it is provided that complainants
shall, in the first instance, address themselves, either
by complaint or information, to the lowest court
having jurisdiction in the particular district to
UKIEF SKliTClI Ol'" SYSTEM OF COURTS
which the complainants belongr. If, for instance, the
complainant bclonos to the district of Feng Yang,
the appropriate court to apply to for redress is
the Feng Yang district magistracy. Thence from
the lower court the case may proceed by regular
gradation to a higher — to the prefecture, the
intendancy, and so on, until the supreme Provincial
Court is reached. From the Provincial Courts a
case may proceed for revision to the Judiciary Board
in Peking , and thence to His Imperial Majesty.
The Judiciary Board [z>. later Siiperintefidence^
Revision efc.) answers in a measure to our Court
of Appeal, but in addition performs certain special
functions of revision and superintendence. It is not
true to consider this important department as a mere
'conduit pipe' f(n- the C(mveyance of information to
ihc highest authority. It has, on the contrary, definite
duties to perform and wide jjowers, and stands
immediately interposed between the high provincial
officials — usually the Governor-General, Governor,
or Provincial ludicial Commissioner — and His
Imperial Majesty.
It is noteworth)- diat one officer exercises a
concurrent ci\il and criminal jurisdiction and, with
INFORMATIONS
one peculiar class of exceptions, the one court
tries all causes that arise. The exception referred
to is in respect of cases of larceny, adultery,
assault, fraud, breach of pecuniary contract, offences
against the marriage laws, and offences against
real property laws, wherein the respective parties
concerned are, on the one side, members of the
military class, and, on the other, ordinary individuals,
or wherein, though the parties on both sides are
military individuals, one or more of the ordinary
people are concerned therein, or wherein, though
the parties on both sides are ordinary individuals,
one or more military individuals are concerned
therein. In such case, it is provided that the chief
military official of the district, and the district
magistrate, shall exercise a concurrent jurisdiction.
The sitting magistrate ^ ^ ^ "^ niay call
in to his assistance as many of his brothers as
he pleases — there is no limit in this respect.
Informations etc. — It is an offence entailing
corporal punishment to lay informations or
complaints at a superior instead of an inferior
court — unless indeed the latter refuses to
receive the same. A judicial officer who refuses
INFORMATIONS
to receive informations or complaints which are
in order incurs a penalty var)in<r with the nature
o( the offence involved fz'. Magistrate s ihities).
To lay an anonymous information or complaint,
an information or complaint, that is, which does
ncn contain the informant's or complainant's proper
name and address, even though the charges prove
to be true, entails strangulation, and the information
or complaint is to be destroyed.
Certain classes of persons are prohibited, either
totally or jjartially, from laying complaints or
informations. Crime, age, infirmity and sex are
the usual reasons. Offenders in confinement are not
allowed to lay informations or to make complaint
on any matter whatsoever, save only as regards
complaints against prison underlings re ill treatment,
or informations regarding other offences committed
by themselves or by accessories. Persons aged
eighty years or over, or ten years or undcM", the
totally infirm, and females, are allowed to lay
information or make complaint re^ardiuij- hiL-h
treason, rebellion, lack of filial piety, murder,
larceny, assault, and fraud concerning themselves or
tho.se who live under the same roof with them :
MANNER OF CONSIDERING A CASE IN GENERAL I I
but in respect of other matters, and against other
persons, no capacity is allowed.
MANNER OF CONSIDERING A CASE IN GENERAL
hi a Chinese case regard is paid to three points,
the facts, the circumstances, and the relative position
of the parties. The first fix the character of the
offence, the third the nature of the sentence, and
the second are considered when it comes to carrying
out the punishment decreed. The greatest importance,
moreover, is attached by the law to the original
cause ^ j^ ;te ,g> — ^- ^- '^ case arises out of a
claim for debt ^^^^.
In regard of the circumstances it is laid down
that, in general, all the circumstances must be taken
into consideration ^ ffg a£ |Ip, and the case
carefully considered with regard to them f^ ^
^ f^ , strict attention being paid as to whether
they are somewhat graver ^^ ^ or somewhat
milder ^^ $^ than usual. But the consideration
of circumstances does not, in general, concern the
judge, for the judge, as has already been stated,
has theoretically no latitude : his duty is to ascertain
the facts, gather the circumstances and then find what
12 MANNKK OK CONSIDERING A CASE IN CENERAL
article of the code the facts agree with — so that the
penalty ina\' fit the circumstances 'Jr fp i>@ f^ ■
Wliere tlicre is no special provision exactly
ap[)l\'ing^ the case is to be brought under the
clause in the code [)roviding for similar offences,
a provisional sentence submitted for the approval
of the Higher Authorities, and the penalty adjusted
according to circumstances. Thus, there beine no
special statutes relating to the traffic in paddy at the
capital, but merely a general j provision that the
traffic is contrary to law, the special provisions
in regard of the traffic in cleaned rice are to
serve as a guide in determining between one case
and another. Cases such as these are leadinof
cases ^ ^ , and the ipsissima verba of the legal
definition hereon may be interesting i. ^. ^ ^
€ % u u # m m ?i ^\i m iitt M ^ m
^ ^ ''leading cases are leading cases to which
''no existing statute exactly applies, and which are
"decided on the lines of some clause more or
"less applicable, with increase or diminution of
"the established penalty."
Where the offence is unprovided for in the Code,
its last ])rovision states that the offender shall be
PRECEDENT I 3
treated as a misdemeanant, and suffer one hundred
blows from the heavy bamboo — a provision not
infrequently made use of in cases of doubt as to
the proper treatment for a given case.
Cii' Constances attenuantes are taken into
consideration, but not by the lower court —
they must await the Autumn Revision. The
lower court has simply to decide on the facts,
and the clause they come under, while the
Supreme Court at Peking decides on the character
and circumstances of the offence. (H. A. H. L.
vol. XXIV. p. 30).
PRECEDENT
This is an important consideration in dealing
with a case, and the reverence that the Chinese
have for it, is well shown in the following
instance — the Emperor himself giving way
(though not readily) to the Board, where the
latter was in opposition. A man set fire to a
farmer's ricks, and the fire spreading, some
thirty-seven houses were burnt down. Naturally
thinking simple transportation for life too light
a sentence, the Emperor suggested trying the
14 PRECEDENT
offender as a pest to society, and sending him
to military serv'itude. The Board, however, showed
tliat the year before, in the case of a beggar
who had burnt down some thirty-three houses,
it had Ix'cn laid down by the Shenekine Board
that the man could not be tried under any law
but that of arson. His Majesty remarked "Very
"well, then: still there is a difference between
"thirty-three and thirty-seven." {v. case of Huo
Kuei-ssu ^ M W, H. A. H. L. vol. LIV. p. i).
The determination of the punishment due to a
particular offence announced, as occasion arises,
])y special edict, is in respect of that offence
only, and is not to be considered a precedent.
Although a sentence has been approved by
the Board, it cannot be qu(jted as a precedent,
unless it has been ordered to be circulated
U tr^m (P. A. s. p. vol. III. p. 83),
ifi ^ * M a ff 2 ^: T^ f# ?i « fi m
(P. A. S. P. vol. III. p. 28).
It is interesting to notice the constant clashing
of precedents. In one instance the Board reproved
15
the Governor for allowing a man to plead that
he had surrendered himself, seeing that to allow
the plea was not only directly contrary to the
wording of the Statute, but also contrary to a
precedent they quoted. In his reply, the Governor
fully admitted the justice of the reproof, but
mildly justified himself for having fallen into error,
by quoting cases approved by the Board in which
the plea had been allowed. The Board, however,
remarked that a precedent which has been once
upset must not again be quoted. (P. A. S. P.
vol. VII. p. i).
EVIDENCE
Chinese Courts pay little regard to direct
statements ; the witnesses are not reliable —
indeed often 'dangerous' : and the duty of the
judge is to wring the truth M iKr '^ I'pg out
of those brought before him — not simply accept
their statements, and decide according as what we
call the weight of evidence seems to incline to
this side or to that. Chinese Courts do not weio^h
evidence but, after a careful cross-examination
rK, pS , narrowly scrutinize it, and decide according
l6 EVIDKNCE
to the conviction of the judges, (v. case of Li
Li Ch'i-chuan ^ ^ fl| , wherein the evidence was
simply set aside, P. A. S. P. vol. XIV. p. 53). 'A
'plausible defence' ^5^ fflj ^ ^^ 1"^^^ comparatively
little chance, and the 'made up stories of the
'accused' ^^^ tf|] J^ i^ are valued accordingly.
In serious cases — as e. g. homicide — a regular
enquiry may be held, and by way of checking
the statements of the witnesses the wounds in a
corpse will be carefully examined to ascertain if
there are any 'undisclosed circumstances' 3'l 1W •
But such an enquiry must be carefully distinguished
from a postmortem (q. v.).
Persons allowed to keep silent by reason of
their relationship to the accused, persons eighty
years of age or over, children ten years of age
cjr under, and idiots, are not to be allowed to
testify, for the)' ha\'e no penalty to fear if they
commit perjury. Every other person, male or
female, may testify ; nor is the prisoner himself
excluded — for in Chinese Courts he is considered
not only a good witness, but a most important
on(! : and in this connection, if the prisoner be
ignorant of letters and has aught to depose, it
EMPLOYMENT OF TORTURE 1 7
is allowable to employ a disinterested person
to write down his deposition — but a court
official is not considered a disinterested person.
Einployiucnt of Torture. — Torture is of two
varieties, leo-al and illeeal. But two legal instruments
of torture are recognised — the one resemblino-
the old Scotch 'Boot', the other a finger compresser.
Other forms of torture are strictly illegal, but are
nevertheless often employed and justified by the
authorities on the ground of necessity : in the result
certain other forms have received legal acquiescence.
Torture is not, as the law is construed, to be
employed without sufficient reason, and if it is,
the officials are liable to punishment. Where, for
example, a witness refuses to answer a question,
or evidently perjures himself, instead of committing
him for contempt, or prosecuting him f(^r perjury,
the Court is authorised to punish him summarily,
by slapping his face, beating him on the outside
of the thighs, or what not, as the case may be.
Again where there is clear evidence of guilt, and
the prisoner refuses to admit the justice of his
conviction, the punishment due his offence cannot
be carried out until he does so, and the application
1 8 EMPLOYMENT OF TORTURE
of more severe forms of torture is permitted (H. A.
H. L. vol. LIX. p. 5).
In certain cases, a prisoner who has been tortured
will be allowed a corresponding deduction from
the punishment he is sentenced to. Thus, if the
prisoner has been beaten to a jelly in the course
of his trial, or, as it is technically described, has
been warml)' 'questioned' H$ ^ ^ #J ' it is taken
into account in the punishment, and the number
of strokes due is reduced a dei^ree — instead of
one hundred he is given ninety, instead of ninety
eighty, and so on (P. A. S. P. vol. XX. p. i).
The emplo}'ment of torture by underlings is, on
detection, heavily punished. Thus Ma Yung il§ $Jf ,
a magistrate's clerk, was sentenced to transportation
to an unhealthy settlement, for t^nng a man up
b)' the thumbs, and beating him with the handle
of a whi[), so that he died. (H. A. H. L. vol.
XM. p. 45). This case is not, it is remarked by
an authorit)', simply one of torturing a man illegally.
Members of the eight privileged classes, persons
over seventy years of age, children under fifteen
years of age, and those who labour under any
])crmaiK'iU disease or iiifirmity, are not to be put
THE SENTENCE I 9
to the question by torture, but may be convicted on
the evidence of witnesses.
THE SENTENCE
Sentences are to be determined by the latest
published supplementary laws, and not by the
original statute ift H i^ ff ® f^J (H. A. H. L.
vol. XLIX. p. 31).
Supplementary laws take effect on the day
of publication, and sentences are to be guided
thereby, although touching transactions antecedent
to such publication. Merely occasional statutes
modifying the law have, however, no such
retrospective force.
As regard capital sentences, in certain cases
of doubt (e. g. of value of property stolen, of
several offenders as to who is really the principal),
the words 'after the Autumn Assize' are to be
added to the sentence.
Delivery and record of sentence. — It is carefully
provided that, if the sentence be capital or
transportable, the prisoner, together with his
nearest relations, shall hear it pronounced in
open court, and that such protest as the prisoner,
EXECUTION OF SENTENCE
(^r liis relations on his behalf, shall make at the
time shall be taken clown in writing', with a view
to subsequent investigation.
The final step, preceding execution, is to record
^ $:S t^ie sentence — the original record being-
styled JMJ^MM-
Execution of sentence. — A sentence must be
executed within a prescribed time, in cases where
the local authorities have a right to execute a
sentence witliout reference. In the case of corporal
punishment, the period is within three days : in
the case of transportation, the period is within ten
days. As regards the majority of capital sentences
actually to be executed, a special official is
appointed by the High Authorities therefor, and
is liable for wilfiil delay therein.
Magistrates who authorise an execution, without
waiting for the hnperial rescript, incur a punishment
of eighty blows. Furthermore, after the hnperial
rescript has Ix^en received, a period of three days
must elapse, before the sentence is carried out.
APPEAL
It is provided that where an inferior Court
refuses to receive an information or complaint,
or decides thereon unjustly, appeal may be made
to a higher court. Cases of the latter category
for the most part are, furthermore, subjected to
revision at the Judiciary Board.
'Unjustly' it is to be noted means injustice in fact,
and not what the appellant considers injustice.
It may be mentioned that every Chinese subject
has the right to directly petition the Throne for
redress, but from the natural difficulty of access
this concession is in eftect a dead letter.
SECTION III SUPERINTENDENCE AND REVISION
INEQUALITY OF ACTION OF COURTS
SUPERINTENDENCE AND REVISION
The important duties of superintendence and
revision rest with the Board of Punishments in Peking
?flj ^ ' alias the Judiciary Board. The jurisdiction
of this body is very wide ; generally speaking, it busies
REVISION ETC. GENERALLY
itself with the administration of the law throughout
the land, stimulating the Provincial Authorities where
necessary {v. nearly any issue of the Peking Gazette);
specially speaking, it functions as the Court of
Cassation in France — a most important part of
its duties being revision generally, and, in especial,
the revision of capital sentences. For the purposes
of revision it commonly acts conjointly with the
Judicial Committee of Criminal Revision ^ 3^ tT
and the Censorate ^ ^ |?^ , and not seldom
comes into collision with one or other of these
bodies,
A further duty which devolves upon the Board
is to take due record of His Majesty's decisions
re provincial appeal cases, and to acquaint the
Provincial Authorities therewith.
Revision etc. generally. — When the Provincial
Authorities have determined the facts of the case,
and the statute under which it comes, a report
is made to the Board ^^ ^ ^ ^ , which decides
whether the riofht article of the code has been
applied — whether, as it is phrased, the facts 'square
'with the statute' ~)j ^ fjl] ^g M ^^ , or are 'in
'accordance with the statute' ^i j^l] 4'>EI ^^ whether
REVISION ETC. GENERALLY
23
the lower court 'is ckjino- what the statute lays
'clown'# M M f^'l IS ^, and whether, bearing
these facts in mind, 'the conviction goes t(X) far
'or not far enough' fP i^ uj /V . The revision is
of an extremely searching nature, and is discharged
in a manner very far from perfunctory : every
detail of procedure is examined, every circumstance
considered. Accordintr to its discretion the Board
either aj^proves Hr ^ the sentence or refers it
back for reconsideration, accompanied possibly by
some trenchant criticism, as e. o-.^ 'the deposition
4s absurd' j^T 'b^ /C H )% IS , 'has no application
'whatever to the case' M ^ \^ % :^ ^ "g .
In some cases, where two similar statutes apply,
the Board corrects the record itself, but where
the penalty fixed by the lower Court difi'ers from
that in the article under which (according to the
Board) the case should come, the case seems to
be invariably referred back for revision. The
Provincial Authorities generally take the hint given
them, but not invariably, and in some cases,
where they persist in their original decision, it
happens that the Board has to admit the justice
of their reasoning, and confirm a sentence of
24 REVISION ETC. GENERALLY
wliich it had originally disapproved. (H. A. H. L.
vol. y. p. 63). Very frequend)' in plain language
die Provincial Aiidiorities are directed 'to come
'to another decision in accordance with the law'
The circumstances of the case submitted to
the Board for its consideration should be 'set
'forth in detail' ^ ^^ , otherwise 'the Board will
'find it difficult to come to any decision' 2pC ^
mmmrn.
The Board has also the power of recommending
die mitigation or otherwise of the penalty fixed by
law, independently of the representation in most
cases usual on the part of the Provincial Authorities,
hi ordinary cases, however, the consideration of
extenuating or justificatory circumstances with a
view to mitieation is thus dealt with. The Provincial
Court collects and submits to the Board the entire
evidence upon which they concluded that there were
extenuating circumstances, it not being enough to
merely mention them $P '\^ |j| >^ p|^ ^ '|f| Tff
n ^ *^ « ft .If pt ig til n M ik m m
^ ffi *^ A^ ^ H* ¥ f^f ft e^ (H. A. H. L.
vol. XLIX. p. 22). Accomj^anying the cn'idence
REVISION ETC. GENERALLY 2$
there must also be a representation. After receiving
the evidence and the representation, the Board,
if it thinks the case one for mitigation, submits a
memorial to the Throne to the necessary effect {id.).
Where it is doubtful whether or not mitigfation should
be allowed, the Board must refer the case back
to the Provincial Court for re-trial (Edict of 22"*^
year of Chi'en Lung, P. A. S. P. vol. VI. p. lo)-,
but, even in such cases, the Emperor or the
Board has occasionally altered a sentence without
retrial.
The Board can also refer a case back because
the judgment is contrary to the evidence, or
because the evidence is insufficient. As regards
false judgments, it is provided that an accurate
and faithful report of the circumstances thereof
shall be laid before His Imperial Majesty, and
a special commission will then be appointed to
try the same. The necessary correction will thereon
be made in the original sentence, and the accuser
and magistrate, if need be, punished.
If the Board forms a theory in regard to a
case which does not square with the evidence,
it refers the case back to be tried again, and,
26 REVISION ETC. GENERALLY
as a rule, the second trial produces depositions
in accordance with the theory formed {v. case
of Li Hui-t'ien $ J^ig B3 , H. A. H. L. vol. LI. p. 7 2).
AVhen the Provincial Court is in difficulty as
to what article of die Code applies, it may take
the opinion of the Board, and where there is no
provision for the case, the Board will determine
how it should be dealt with. Explanations of
important difficult points are usually incorporated
in Circulars g^ Ij^ for the general information of
the Provincial Authorities.
The Board has a ready method in dealing with
cases submitted to it which contain unprecedented
features — re-trial, with sentence in accordance with
the Board's views. Thus in the case of Chia
Te-wang H ^ BI , wherein an offender had
been sentenced to death for reducincr his uncle
to the condition of a helpless cripple ^ ^ ^ •
The said offender's nanie had already been
submitted to H. I. M. tw(j years successively, but
passed over, when a petition was presented, alleging
that the uncle had to some extent recovered,
and being now merely permanently injured j^
, it was submitted that the prisoner was
m
REVISION OF CAPITAL SENTENCES 27
liable to transportation only. The Board declared
that such a case was unheard of Jc ^ -{^ ^
fHX ^ ^ , and ordered a re-trial at which the
man was declared promptly to be still a permanent
cripple. The facts were that the uncle had to
some extent recovered the use of one hand, the
tendons of which had been cut. The Board however
admitted that, if the uncle had been declared cured,
the sentence would have had to be remitted (P. A.
S. P. Supp. p. 11).
The Board is extremely firm in upholding any
decision it has given, and represses unmercifully
any Provincial Authorit}- : and, though in respectful
language, brings all its guns to bear on the
Judicial Committee, when the two bodies differ.
There is even a case on record, where the Board
declined to alter a decision , though His hiiperial
Majesty himself twice in curt and cutting terms
expressed his disapproval of it (z'. case of M'^
Fang ■:^ j^H.A. H. L. vol. XL. p. lo).
Revision of capital sentences. — Having thus
briefly dealt with the general jurisdiction of the Board,
it remains to give a special note on probably its
most onerous duty — the revision of capital sentences.
28 REVISION OF CAPITAL SENTENCES
The vast majority of death sentences are
submitted by the Provincial Authorities to the
Judiciary Board p^ fjj- Jt S foi* revision. Two
lists are there made out, one of criminals who
should !))• right be executed, and the longer one
of criminals whose death sentence is merely
formal. The second list is at once referred to the
proper officers to determine on the commutation
fixed by unwritten custom, and the Provincial
Authorities are informed of the revised sentences.
The first list is then written on a larcje sheet of
paper thus :
A. C. D. E. F. G. H. I.
K.
Z.
^
N
OM^
O. R.
S.
y.
U.
V.
W. X
\y. Z.
A.
c.
D.
E. F.
dH.
I.
\.
K.
L.
M. N.
d. p.
Q.
S.
T.
U. V.
/N. X
Y.
z.
>>
^
s>^.
E. F.
G.
H.
I.
J-
K. L.
M. N.
not alphabeticall)', or by chance, but so that the
names of those prisoners who are, in the opinion
REVISION OF CAPITAL SENTENCES 29
of the Board, less guilty than the others are placed
either at the corners or in the centre. The list
is then submitted to the Emperor Hq ^ gjg g ,
who, with a brush dipped in vermilion, makes a
circle on it at seeming, and to some extent real,
hazard, and the criminals whose names are traversed
by the red line are ordered for execution. The
others remain on the list until the next year, but,
if they escape the vermilion pencil for three years ,
their sentences are then commuted. This revision
takes place annually in the autumn, and is often
called and translated 'Revision at the Autumn
'Assize.'
There are some cases where the procedure
above described may be dispensed with, the Code
providing- that the Governor of the Province may
authorise the immediate carrying out of the death
penalty. Rebels, pirates etc., are thus summarily
treated.
INEQUALITY OF ACTION OF COURTS
The action of the Courts is not always equal
— witness the cases of Hsia Sheng-pa M ^ ^ ^
and of M'"« I nee Hsiao M W ^- ^^^ the former
INEQUALITY OF ACTION OF COURTS
case the prisoner was sentenced to capital,
punishment for the murder of his niece, a child
of ten, whom he stabbed to death in her sleep,
designing- to lay her body at a certain man's
door, and get the latter held responsible for it,
in revenge for a threat to report the |)risoner
to the Authorities for neglect of duty. The Board,
however, reversed the sentence ^ ^ , there being
a special statute applying which enacted that military
transportation was the proper penalty for such
offences, and holding that the prisoner's act, though
brutal and cruel, was merely that of a stupid villager
■i-. S SI - Bf « ® )5;r S^ (P. A. s. p.
\-(j1. IIIj. In the case of M^"^ I, the Board insisted
upon a certain aunt receiving capital punishment,
for rolling a very abusive and thieving niece into
the river and drowning her. The view held by
the Board was that though the niece was indeed
a thief, and her aunt had been forced to pay
out money for her to hush up a previous offence, yet
the crime of robbing her aunt was too trivial to
justify the extreme measure taken (Jd.).
PRINCIPALS, ACCESSORIES, ACCOMPLICES 3 1
SECTION IV — PRINCIPAL AND ACCOMPLICE
PRINCIPALS, ACCESSORIES, ACCOMPLICES
Chinese Law recognises, Principals in the first
degree ^ "g" , Principals in the second degree
— hereinafter styled accessories — ® ^ >
and Third Parties ^ J^ . An accessory taking
actual part in an offence is phrased ^ ffij JJP ^ •
One only can be held responsible as principal in
ordinary cases, although in armed robbery from
a house, all taking part in the crime are punishable,
and no distinction is drawn between principals and
accessories ; and so, also, in such special cases as
that of a relative arranging an illegal marriage
at the instigation of the parties : and in the case
of such heinous offences as adultery. But, in
general, one only of several parties concerned
can be dealt with as principal : and it is in general
the originator who is so dealt with. Thus, in the
case of Lo Yen-sheng^-^ ^ 5£ i two men murdered
another, and then ravished his wife. The orio-inator
was convicted as principal, and sentenced to
immediate decapitation and exposure of the head.
32 PRINCIPALS, ACCESSORIES, ACCOMPLICES
the Other to iinnictliate decapitation onl)' (H. A.
H. L. vol. LII. p. 7). In another case, two men,
purposing- to ravish a woman, killed her, without
achievino- their object. The orimnator was held
responsible as principal, although the fatal blow
was dealt by his accomplice (z>. case of the maid
ching Lu M:^^iK).
If the person originating an assault is present
and directs it, he, and not the actual parties to
it, is held to be principal and capitally liable for
fatal results; but if the originator is not present,
the person doing the chief injur)- is held to be
principal, and the person at whose instance ^
^ the fatal assault was committed is
merely punished as an accessory, with transportation
for life to a distance of 3000 li and 100 blows
Am^T^m^mm^m'^0im
IK tt - g ^ = ^ ffl M n » ±® 2
» m B 'a' wj ^ m m ^ 1^ it? (h, a.h.l.
vol. XXXVIII. p. 56). In robbery or theft by
.several, the planner, whether present or not, is
PRINCIPALS, ACCESSORIES, ACCOMPLICSS 33
held to be the principal, although the plunder has
been privately appropriated by others concerned.
If the person doing the injury is an employe
of the principal, and therefore naturally under his
influence, the case comes within the law on this
point. So in the case of Niu Chung nF* >* i 3.
landlord, and Ts'ui Kuang-chang -^ ^ 5C i 3.
farmer, where the latter was held to be merely an
accessory — though the fatal injury was certainly
of his doincT — on the around that he was
his landlord's farmer, accustomed to take his
instructions, and bound to take his part when
called on to do so (H. A. H. L. vol. XXXVIII.
p. 57). The technical phrase herein is 'done by
'command of i^ MH& 00 3E '^ • If, however,
the person doing the injury merely joins in the
fray at the request of the other party, who has
no authority over him, the case would be treated
as a joint affray — for the party joining has done
so of his own free will y" ^lj> ^ ^ •
To enable a person who commits an assault
to claim the benefit of the statute which throws
the chief responsibility for an assault upon the
party by whose directions and compulsion the
34 PRINCIPALS, ACCESSORIES, ACCOMPLICES
assault was committed, it is necessary that the
person who commits tlie assault should be free
(jf all ill-will towards the person assaulted, and
should be really in fear of the party by whose
directions and compulsion he commits the assault,
or subject to his authority in very earnest {zk
H. A. H. L. vol. XL. p. 1 8).
To hire or incite another to the commission of
an offence renders the hirer or inciter liable to
the same penalty as is incurred by the offender ^
A 1^ ^ flS ^ A ffi ft |a ^11 a A 1^ P
(H. A. H. L. vol. XLVIII. p. 8i): on the same
principle, if, at another's instance, a person commits
suicide, the former will become liable as principal,
and a fortiori if he supplies poison (case of
Wang Wen-kuang J^JS, H. A. H. L. vol.
XXII. p. 41).
Where two criminals are convicted under different
statutes, though engaged in tlu; same enterprise,
they may both be held to be principals |^l] JS
# ?^4 # IP # 0 S -f ife (P. A. S. p. vol.
V. p. 61).
Wliore the person who plans an affair draws
back at the last moment, the person who takes
PRINCIPALS, ACCESSORIES, ACCOMPLICES 35
the lead in his place is to be considered the
principal ili W: ^ Z A Wa ^ Z- ^ o o ^f^
AW.^'±M CO ja ^ "t i^ (P- A. S. P.
vol. V. p. 62). But if everything had been
arranged by the planner, it may happen that
no one can be held responsible as principal.
Where several thieves, running away from a
robbery that they have committed, severally resist
their pursuers, each is treated as principal under
the clause of resisting arrest. Where, however,
two thieves assist each other in resisting arrest,
the one who inflicts the fatal wound, if there be
only one wound, or who inflicts the first fatal
wound, if there be several wounds, or — if there
be no possibility of distinguishing between the
gravity of the wounds — the one who uses an
edged weapon, or if both use an edged weapon,
the one who first strikes a blow, is held to be
the principal (H. A. H. L. vol. XV. p. 52).
In the case of a fight with fatal consequences,
the person who strikes the last fatal blow is
ordinarily held responsible; but if the originator
of the disturbance has inflicted a fatal wound, he
is held responsible, though the death result from
36 PRINCIPALS, ACCESSORIES, ACCOMPLICES
another wound subsequently inflicted. So in the
case of Tsou San-yu ^P ^ ^ , where the victim
uudoubtedly died from breaking his neck consequent
on being knocked downstairs by another person,
but the responsibility was laid upon the person
who had commenced the fight, on the ground
that he had struck the deceased on what miorht
have been a fatal place.
Where various members of the same household,
males and females, are concerned in an offence,
the responsibility lies with the males; but not in
capital offences, and in such cases, a female who
takes the leading part may be held liable as
principal.
An accessory may incur more severe punishment
than the principal, and indeed may incur a penalty
when the principal escapes scot-free. The case
of Yang Ts'un-chen ^ ^ M is an illustration
of this. There, by direction of his mother, Yang
strangled liis sister, who had been caught doing
what she ou({ht not to have done. Yano- was
sentenced to lOO blows, but the Board did not
think it necessary to inflict an\' punisliment on the
unnatural uwth(v^jjii^%^i^§^^. Another
PRINCIPALS, ACCESSORIES, ACCOMPLICES 37
good instance is the case of M'"^ Chang nee Lin
5R © K and Chang Tso-wen 58 "f^ ^ ^ where
the woman for poisoning her children was sentenced
to decapitation subject to confirmation, the man,
for supplying it, to strangulation without reference
(H. A. H. L vol. XXIV. p. 48). An incongruous case
is that ofChangWen-kuang§3 %, 3fe \ the principal
therein murdered his slave, and escaped with 70
blows and one year's transportation: the accomplices,
though relatives, were sentenced to 100 blows and
transportation for life.
Ordinarily an accessory, in the case of premeditated
murder, is sentenced to death, or to transportation
for life, — where such sentence would be applicable
— after the autumn assize : but where the question
of relationship (a subject which is dealt with later
on) operates, the punishment is increased — as in
the case of Su Yu-lin fi[^ ^ /j>fc , whose sentence
of death for helping his sister to murder her
husband was carried out straightway (H. A. H.L.
vol. XXIII. p. 59). A person who acts under
his parents orders will, however, be shown some
leniency, as in the case of Tan Pa Chan Hsieh
;!?' El iS JSLi whose sentence of death was
38 PRINCirALS, ACCESSORIES, ACCOMPLICES
commuted because he had acted under his father's
orders, and further because three people had already
been executed for the affair (id.). This however
is in realit)' merely an illustration of the general
principal applicable to one acting under compulsion.
An accessory may even be brought in as
prmcipal. Two rascals planned a case of bogus
suicide by hanging, and the one confederate
delayed cutting his friend down until he was
really dead. The survivor was convicted of
intentional homicide and sentenced accordingly
(H. A. H. L. vol. LI. p. 72) — a decision most
closely resembling English Law on the point.
On the other hand where a person assists another
to actually commit suicide by hanging, by way
of friendly office and with the full consent of the
said suicide, the kindly friend will be treated as
an accessory, and the suicide himself as principal
(case of Hsien Hu-pen ^ ^ 2^^ , H. A. H. L.
vol. XXII. p. 43).
Where, of several persons, one supplies the
arsenic with which they propose to poison certain
others, and the wrong persons are poisoned, the
person who sujjplies the arsenic, not being present
PRINCIPALS, ACCESSORIES, ACCOMPLICES 39
at the time the poison is administered, is to
receive one hundred blows and transportation
for life, as a passive accomplice in deliberate
murder (H. A. H. L. vol. XXIV. p. 45). If
the poison fails, the murder being effected by
other means, and provided it be the right person
who is killed, then the person who supplied the
arsenic is capitally responsible (H. A. H. L. vol.
XXIV. p. 49).
A person is considered as an accomplice to
a murder if it originated in his act, although he
could not be said to have actually contemplated
or designed the murder, or the murder was
not committed in the way he designed. So in
the case of M''^ Hsii nee Ch'ijan gf :^ ^ 1
wherein a wizard employed to bewitch a child
knocked it on the head instead (H. A. H. L. vol.
XXII. p. 41). .
An eye-witness to a murder and highway
robbery was, in a well known case on the point,
sentenced to mitigated punishment as an accomplice,
i. e. transportation, it being shown that he had
caught the murderer, and then for money had
let him go. A friend of the eye-witness, to whom
40 PRINCirALS, ACCESSORIES, ACCOMPLICES
the latter narrated the circumstances, was in the
same case bambooed for not laying an information
(H. A. H. L. vol. XXII. p. 57). Beyond giving
information, however, a bystander does not appear
to be under any obligation to interfere, or indeed
to have any right to do so, and if, in coming
to the rescue he, unintentionally even, causes the
ruffian's death, he will be held responsible for it.
A mere bystander must, however, be carefully
distinguished from one who stands by and lends
his countenance Pf»t' ^ ^ ^ to an affair.
In conclusion, it should be remarked that the
law regarding Principal and Accomplice is so
closely involved with the nature of a particular
offence as not to be easily separable therefrom.
Some attempt has been made to do so in the
foregoing, but attention is drawn, in especial,
to the law hereon in connection with such
offences as homicide and larceny, and to be found
thereunder.
ABSENCE OF MALICE 4 1
SECTION V ABSENCE OF MALICE CONFRONTATION OF
OFFENDERS COMMISSION OF SEVERAL OFFENCES
PBEVIOUS CONVICTION
ABSENCE OF MALICE
Where there is no malice, the case is in general
entered on the list of Cases Reserved ,^^ ^ .
Thus, in the case of Chang Erh-koii 58 ^ ^^ '
a consenting party, firstly, to the improper conduct
of his sister, and secondly, to her putting her
intimate out of the way, the capital sentence
was in the first instance decided on, but, inasmuch
as he had no malice in the matter, the case was
entered on the Reserved List ^ ^:^^^ |i||
^1] M mm mm m m a m m (h. a.h.l.
vol. XXIY. p. 48).
CONFRONTATION OF OFFENDERS
Parties apprehended etc. zvitJiin different
jurisdictions. — Where there are several parties
to a case, and some are apprehended within one
jurisdiction and some within another, a form of
local extradition applies. It is provided that so
soon as it is discovered that any of the accessories
42 CONFRONTATION OF OFFENPERS
or accomplices to a case are in the custody of
another jurisdiction, official requisition for their
appearance shall at once be made to the latter,
althoui^h the respective jurisdictions are entirely
independent of each other, and such requisition
shall in general be complied with within a prescribed
period. If the trial of such accessories has already
commenced within the jurisdiction to which they
belonged, before such aforesaid requisition has
been made, it is provided that the prisoner
charged with the lesser offence shall be removed
to the court in which the prisoners charged with
graver offences are under trial : or, if the offences
are of equal gravity, the few shall be transferred
to the court which has within its jurisdiction the
greater number: or, if the numbers are equal, the
prisoners last accused shall be removed to the
jurisdiction in which the first accusation was made.
If the distance between the jurisdictions exceed
300 //, it is however provided that each charge
shall be examined and determined separately.
Treatment of other parties to a case where
one party is still at large. — Where one of the
parties to a case is still at large, and the chief
TREATMENT OF OTHER PARTIES ETC. 43
blame is thrown upon him by those who have
fallen into the hands of justice, if there is sufficient
evidence to straightway bear out the statements
of the parties, they will forthwith be either punished
as accessories or released, as the case may be.
On the other hand, if, as is usually the case, no
such evidence is forthcoming, the several sentences
are not immediately carried out, but they are
detained in prison pending his arrest, lest, when
the case is finally disposed of, it should prove
that they, and not he, should properly have been
condemned as principals. As, however, it would
be unfair to detain them for ever, it is in o-eneral
the rule that they may be disposed of after three
years, if their sentence be bambooing merely,
after five years if their sentence be transportation
for life. The date from which the imprisonment
commences is calculated from the date of
confirmation of the sentence, and not from the
date of arrest, and, in some cases, where sentence
is deferred, a man is left to languish for twenty years,
before he can claim to be sent to transportation,
or if he has, as usual fallen in, meanwhile, with
Acts of Grace and General Gaol Deliveries, before
44 COMMISSION OF SEVERAL OFFENCES
he can be set free. In the case of joint larceny,
and no matter whether the sentence be deferred
or not, the rule is that not less than twenty years
must pass before the sentence can be carried out.
In capital cases, execution is not necessarily
deferred even though a man may thereby escape
decapitation and mutilation, but a capital sentence
for joint larceny (supra) will be postponed twenty
years and, if need be, longer.
COMMISSION OF SEVERAL OFFENCES
Where an offender is convicted of two (or
more) offences at the same time, he is sentenced
on the graver charge, not on both^lj ^ Zl fP ^
f^ ^ ^ ^ So, two officials, who had committed
the offences of bringing in an offence as lighter
than it was shown to be, and brinorino- a false
accusation, escaped their full term of punishment
for these, and were sentenced on another and
graver charge of misappropriating large sums of
public money (H. A. H. L. vol. V. p. j).
The rule is one which operates curiously at
times. Thus, in the case of Chang Ch'ing 5R S
tvvo distinct offences were committed : the one,
COMMISSION OF SEVERAL OFFENCES 45
gambling, the other, beating the man with whom
the offender was gambling so seriously that he
committed suicide. For oamblino- the offender
became liable to two months cangue, and for
the other offence, to one hundred blows and
three years transportation. Escaping the former
punishment, according to the rule, the offender
also escaped the latter, because he was the only
son and sole support of a man over seventy
years of age (as to which see later), and was in
the end sentenced to only one month's cangue.
It may thus be regarded as sometimes of advantage
to an offender to commit more than one offence.
It should be noted that, in determining which
of several offences is the most serious, the penalty
is the test, and although decapitation is a heavier
punishment than strangulation, strangulation without
appeal is considered heavier than decapitation
subject to revision at the i\utumn Assize (H. A.
H. L. vol. XXIII. p. 58). The above question
seems to have arisen in two instances in the reign
of Ch'ien Lung ; in both cases, the offender had
committed two offences, the one, rendering him
liable to immediate strangulation, and the other.
46 COMMISSION OF SEVERAL OFFENCES
to deferred decapitation, and, though the point
seems to have been decided, in both cases, by
the issue of a special edict making the sentence
immediate, it was at the same time allowed that
immediate strangulation was heavier than deferred
decapitation (H. A. H. L. vol. V. p. 2).
As regards several offences of equal gravity,
an offender can, as a rule, only be sentenced
upon one : but, in the case of two capital offences
of equal gravity, the penalty may be increased.
Thus, if the penalt}^ for either offence be summary
decapitation, exposure of the head will be added.
To come within the application of this practice
the offences must not be against the same, but
against different statutes ; hence in the case of
Shao Ming-te SP R^ ^, wherein the offender
was guilty of successive rape upon two women,
it was held that both offences beine against the
same statute the penalty could not be increased
(H. A. H. L. vol. LII. p. 6).
If several offences are charged at different
times, and the punishment of the first of the
charges has been already inflicted , the latter
charges will not subject the offender to further
COMMISSION OF ANOTHER OFFENCE AFTER SENTENCE PRONOUNCED 47
punishment, unless of a more serious nature than
the former, and then only the difference between
the legal punishments will be inflicted.
The case of Lii Mei J^ ^ is an interesting
one. The offender in that case, in order to destroy
traces of an abduction, set Are to a house in
which he had committed the offence, and thereby
caused the death of four persons in one family
and two in another. The prisoner was found
guilty of abducting a married woman, of malicious
arson causing the death of two persons in one
family, and of malicious arson causing the death
of four persons in one family — being sentenced
under the statute applying to the last (P. A. S. P.
vol. XIV. p. 43).
Coininissiou of another offence after sentence
pronoMuced. — The general rule as to the commission
of several offences seems, also, to apply where an
offender commits a further offence after sentence
has been pronounced — the punishment due the
greater offence will always supersede that due the
lesser. Where an offender has already been
transported, whether temporarily or permanently,
the punishment due the commission of a subsequent
48 COMMISSION OF ANOTHER OFFENCE AFTER SENTENCE PRONOUNCED
offence entailing temporary or permanent
transportation ma)' be commuted for an additional
period or additional service as the case may
be. But, in general, in such cases, inasmuch as
escape is usually involved, it is customary to
merely punish this breach of etiquette : so a thief
who, undergoing his sentence of transportation, runs
away and commits a second theft, will merely be
bambooed or cangued for attempting to escape,
and sent back to the original place of punishment.
This latter leniency seems frequentl)' to receive
a strained application, as in the case of T'an
Ya-fu g^ 55 ^ , an offender transported for
incorrigible theft, w4io ran away and committed
no less than six several thefts of small amount:
for this the offender received a year's cangue
(H. A. H. L. vol. III. p. 75). hi these cases
also it is, however, the rule that where the offence
committed by the runaway be of a more serious
nature than that for which he is suffering punishment,
he may, under special circumstances be tried for
the former and sentenced anew to the graver
l^enalty it entails (H. A. H. L. vol. XVI. p. 51).
PREVIOUS CONVICTION 49
PREVIOUS CONVICTION
By this is understood previous conviction for
the offence in question and after the convict has
been branded, though as regards the latter point
it has also been counted a previous conviction
where the criminal had been convicted of the
same offence (theft) but excused the branding
because the person robbed was a relation (H.
A. H. L. vol. III. p. 53). The conviction also
holds where the offender had been sentenced
upon another and more serious count in the
same indictment. (H. A. H. L. vol. III. p. 51).
The above seems to be very strictly construed,
and even where a person is convicted of highway
robbery a previous conviction for theft will not
in general be taken into account (H. A. H. L.
vol. III. p. 54 — ?'. hifra however).
Hardened offenders. — The general rule on
this point is a combination of those regarding
the commission of several offences and previous
conviction, i. c. the consideration of but one
count of several and previous sentence on a
precisely similar charge, and hardened offenders
50 HARDENED OFFENDERS
are on the whole treated with considerable
leniency. Of course the rule does not apply to
capital cases, which stand by themselves, and if
a person is a "Jack the Ripper", his family as
well as he may suffer, or the capital penalty
may otherwise be increased (Coi)iinission of
Several Offences)^ be it in regard of homicide or
other offence. Nor does the rule extend to larceny,
for when a person is shown to be a professional
thief and generally dangerous to the peace and
good order of the community he may be dealt
with either as an habitual offender in larceny
® il 3W il^C 1 ^i^cl sentenced to military servitude
for life under the statute H ft E ^ $ i tU
fi S IS (Case of Wang Hua-lung I >ffc
m, H. A. H. L. vol. XVI. p. 58), or as a
dangerous nnvd)- I^M ft ffi W 1 ai'icl sentenced
to transportation for life (H. A. H. L. vol. XVI.
p. 14). There must however be seven or eight
cases of larceny or several previous convictions
therein proved to bring an offender within the
first category, and five or six cases and an
element oi violence to bring him within the second.
In the case of larceny by several, two previous
HARDENED OFFENDERS 5 I
convictions of the same persons will cause all
therein to be treated as principals. It may be
added that in Kwang-tung province an offender
guilty of eight distinct offences, whether theft,
robbery, holding to ransom, or extortion, will be
considered as an habitual offender in larceny and
sentenced to military servitude, and though the
number of offences be but four or five, and any
violence inflicted be but slight, yet the offender
will also be sentenced to military servitude under
the statute :ft % ^f^ ffi ff A •
CHAPTER II
PUNISHMENT
SECTION I — ANCIENT PUNISHMENT — VARIETIES OF PUNISHMENT
ANCIENT PUNISHMENT
In the records of the period B. C. 2601,
durincT the reicrn of Huane-ti, is to be found
what tradition states to be the first instance of
public execution. This was the decapitation, in
the presence of the chief's own troops and of
those of his rival, of a rash aspirant to the
sovereignty. Hitherto when the chiefs disagreed
they fought until one killed the other and dreamt
not of taking prisoners, but henceforth it became
the custom for the leader to sacrifice those who
opposed him in more deliberate fashion. Brought
out on an eminence where all might see him,
ANCIENT PUNISHMENT 53
the man to be destroyed would be publicly
beheaded.
By the time of Shun — B.C. 2248 — the penalties
by which law and order were maintained were
various, and had attained some sort of classification.
The legal punishments at this remote period were
as follows : — branding the face with a hot
iron, cutting the nose (probably merely slitting
the nostril), cutting off a foot (probably the present
illegal torture of dividing the tendon Achilles),
castration, and death. Shun introduced the
commutation of these penalties to banishment,
cangue, bambooing, or simple fine, where there
was possibility of doubt as to the guilt of the
offender ; where the offence was chance or
accidental, he pardoned the offender ^ for a second
offence the offender was to be sentenced to
death. In his address to his Minister of Justice
at his accession, Shun laid down that executions
should be public : branding , mutilation , and
castration, private : that exile should be of two
classes — the lesser, within the empire, the
other, for more serious offences, beyond the
frontiers (much the same as it is now). An
54 ANCIENT I'UNISHMENT
instance occurred in this reign of four high
officials being exiled, their offences respectively
being contumacy, defending and taking the part
of an offender, failure in a public mission, mutiny.
In all these cases the exile was probably beyond
the frontiers, for though in both the first and
second instances the offence in itself was light,
the position of the offender made it of a more
serious nature, and a meet occasion for a public
example. The penalty of exile indeed was a
favourite punishment with the early rulers, and
Yii, Shun's predecessor, is described as upon
one occasion visiting the frontier states, the
Botany Bay of those early times, and enquiring
into and regulating the treatment of the exiles —
a numerous population one would therefore
conclude.
Under the Chou and Han dynasties — a
millennium from B. C. 1122 — the legal
punishments were death, castration, maiming,
cutting off the nose, branding the forehead —
in substance much the same classification as in
the time of Shun. Transportation, though not
mentioned in the list of the period, was also a
VARIETIES OF PUNISHMENT 55
usual penalty, but had not yet attained its full
importance as a legal punishment.
In spite of all limitations thereon, capital
punishment seems to have been the current
early penalty. Many historical, it may be legendary,
fugitive references are made thereon, and with
regard to its too frequent application — so of
the Minister of Justice Li Li ^ ^ — circa B.
C. 630 — who, afflicted thereat, promptly committed
suicide.
VARIETIES OF PUNISHMENT
The legal punishments stated generally are as
follows : — slicing to pieces until death (or
'lingering death', or the 'slow process', as it is
variously termed), decapitation, strangulation,
transportation for life or for a term, penal
servitude, imprisonment, the cangue, the application
of the bamboo , branding , fines (rather by
way of commutation, however, than an initial
punishment).
There are also other punishments countenanced,
but not legally recognised e.g. exposure, castration.
The orthodox classification comprises five heads
56 DEGREES OF rUNlSHMENT
of punishment ^ WJ , i. e. death, transportation
for life, transportation for a term, the heavy
bamboo, the light bamboo : the death penalty
being divisible into two forms — decapitation, and
strangulation : transportation for life into three
forms : and the other varieties each into five forms.
Degrees of Ptmishment. — The division of
punishments into degrees has been carefully
adopted — the chief conveniences thereof being
the facility thereby obtained for increasing and
reducing penalties with uniformity and the
assessment of equivalent punishment.
There are in all twenty degrees of punishment,
varying from ten strokes of the bamboo to
decapitation. Accordingly, if a sentence is increased
one degree, the meaning is that the punishment shall
be inflicted more severely by that one degree, if
a sentence be mitigated one degree the meaning
is that the punishment shall be relaxed by that
one degree ; a sentence of 60 blows of the
bamboo increased one degree becomes 70 blows,
and mitigated one degree becomes 50 blows,
a sentence of transportation for two years and
a half increased one degree becomes transportation
CAPITAL PUNISHMENT 57
for three years, and mitigated one degree becomes
transportation for two years.
SECTION II — CAPITAL PUNISHMENT — SELF-EXECUTION —
IMPROPER EXECUTION
CAPITAL PUNISHMENT
Of this there are various kinds.
The most ignominious of all penalties is slicing
to pieces i^ V;^ and extinction of the family. Here
the offender is tied to a cross, and, by a series
of painful but not in themselves mortal cuts, his
body is sliced beyond recognition. The head of
the offender is subsequently exposed in a cage
for a period.
This punishment, known to foreigners as 'lingering
death' is not inflicted so much as a torture, but
to destroy the future as well as the present life
of the offender — he is unworthy to exist longer
either as a man or a recognizable spirit, and, as
spirits to appear must assume their previous
corporeal forms, he can only appear as a collection
of little bits. It is not a lingering death, for it is
58 CAPITAL rUNISHMENT
all over in a few seconds, and the coup de grace
is generally given die diird cut; but it is very
horrid, and the belief that the spirit will be in
need of sewing up in a land where needles are
n(jt, must make the unfortunate victim's last moments
most unhapp}'. In short, though the punishment
is severe and revolting, it is not so painful as the
half-hanging, disembowelling, and final quartering,
practised in England not so very long ago. It
should be added that if an offender sentenced to
this penalty commits suicide to avoid it, or otherwise
dies before it can be carried out, the corpse is
cut and slashed as if alive. So in an instance
wherein a son gave his mother a push, and killed
her thereby; his elder brother thereon buried the
offender alive, as some sort of satisfaction, but
the authorities, deeming this inadequate, ordered
the body to be dug u]) and sliced (H. A. H. L.
Supp. vol. XII. p. 2).
Further, that a pernicious life ma)- be utterly
destroyed, and be dtjomed to starve in the spii-it
world without posterity to offer annualh' the tribute
of wine and pork, on the smell of which spirits
lix'c, his sons and grandsons arc also executed, or
SIMPLE SLICING TO PIECES 59
if infants at the time of his offence, are emasculated,
and so prevented from carrying on the race.
This punishment is inferior, considered artistically,
to torturing a man to death, as for instance Damiens
was tortured — burning the body and then scattering
the ashes to the four winds. The destruction of
the future comfort of the offender's o-host is,
however, undoubtedly a refinement.
Simple slicing to pieces is a degree lower in
severity than the foregoing.
Next in form of severity is decapitation and
exposure of the head ^ ^7^ ^ 7J> , and in cases
of rebels, pirates, etc., this punishment may be
carried out forthwith on the scene of the offence
or in the public market place. The criminal does
not lay his head upon a block to be chopped
off by an axe, but is placed kneeling with his
hands tied behind him. One assistant holds him
in position by the rope with which his hands are
tied, another pulls his head forward, and with one
stroke of his sword the executioner whips it off.
The body is given to his friends, if he has any,
or otherwise, is buried by the Provincial Governor:
the head is put in a cage, and hung up in a public
6o SIMPLE DECAPITATION
place, to afford a text for perambulating moralists.
Simple decapitation without further formality ^
comes next in severity. As has been before
mentioned, in the case of ordinary capital offences,
being sentenced to death does not by any means
involve a certainty of a violent end; and so this
punishment is of two classes, the one when the
decapitation is certain ^ jjl ^ — the sentence
being carried out if the crime is rightly determined ;
the other where the decapitation is subject to the
approval of the Board — the circumstances being
considered at the autumn assize, and the penalty
beinor carried out or not according^ to the result
of this consideration. The former class may be
styled simple decapitation certain, and the latter,
a degree lower in the scale of severity, simple
decapitation subject to revision — for though, as
regards this latter designation, both classes (like
nearly all death sentences) are sent to Peking
for revision, in the former class, the subject of
revision is not the facts of the case but the
measure of punishment.
The punishment may, where necessary, be
carried out forthwith — but this , in fact ,
SIMPLE DECAPITATION SUBJECT TO REVISION 6 1
comparatively seldom happens , then only in
exceptional cases, and by way of example.
Simple decapitation subject to revision at the
Autumn Assize 4lf ^ fe applies to a very large
number of cases. The procedure has already been
described. It remains to add that a comparatively
small proportion of these sentences is carried out,
though the offender has a very good chance of
dying in prison while he is waiting for revision.
The usual commutation of decapitation subject to
revision is either to strangulation, or to military
or ordinary penal servitude for a space of three
years.
In view of the reason underlying a penalty
which involves dismemberment, it is provided that
this part of the sentence shall still be carried out,
thoucrh the offender should have died in the
interval (H. A. H. L. Vol. XLIV. p. 34) — the
sentence is supposed to be carried out whether
the offender be dead or alive, and it appears
from the reports, in some instances at least, actually
to be so. Thus, if the offender's name should
chance to have been placed on the fatal calendar
and ticked off by the Emperor, the fact that the
62 STRANGULATION
offender has died before die warrant for his
execudon lias arrived, does not save his body
from decapitadon. hi the case of Ma Hsiao-liu
il^ /J"* ~r\ an offender who had been condemned
to decapitation and to ha^^e his head exposed,
died in prison before execution; the cc^rpse was
directed to be decapitated and the head exposed
m^^mm^mp^t- (h. a.rl.
Vol. XIII. p. 66).
The lightest form of capital punishment is
strangulation -^^ , and, as in the case of decapitation,
it is divided into two classes, the more severe —
strangnlation certain j|^ il ^ — and the less
severe — strangnlation S2ibject to revision at the
Autumn Assize )|^ ^ \^ . Though supposed to be
preferable to decapitation in respect of the future
happiness of the victim among the shades, it is
an infinitely more painful death. Here the executioner
throws the vicdni down upon his face, and then
sits astride him twisdng a cord around his neck;
then, as speedily as he can — though slowly in
effect — he strangles his victim. If the executioner
is not skilful, the experience must be worse that
that of hanging prolonged, bad as that is —
SELF EXECUTION 63
notwithstanding patent drops and all the experience
of science.
As in the case of decapitation, a sentence of
strangulation subject to revision is seldom actually
carried out, and the apparent greater proportion
of actual strangulations than of decapitations to
the number of sentences is due to the commutation
of many sentences of the higher punishment to
the supposed milder one.
SELF EXECUTION
hi the case of High Officers, as a mark of
special favour, the offender is sometimes allowed
to carr}' out the sentence himself — either by
hanging himself, or taking poison, as the case
ma)^ be. In the latter case the offender is said
to have 'swallowed gold', an euphonistic expression
for a gilded pill, though it is strongly asserted
by many Chinese and foreigners that gold leaf
is really swallowed with fatal effect. A good
authority — the Viceroy Yeh — has indeed
asserted gravely during conversation that a lump
of ofold was in fact taken, the weight of which
working through the intestines caused eventual
64 IMPROPER EXECUTION
death. But, with all submission to so high an
authorit)', it is believed that this statement is
somewhat wanting.
IMPROPER EXECUTION
Where, in due accordance with a pronounced
judicial sentence, an offender is decapitated when
he should rightly have been strangled, or vice
versd^ or where the body of an offender is mangled
or disfigured contrary to law, the magistrate will
be liable to a varying number of blows.
Where a person dies consequent on improper
punishment, the executioner will share the
responsibility therefor, because it is assumed that
^f the underling had carried out the punishment
properly, the victim would not have died (H. A.
H. L. Vol. IX. p. lo).
SECTION III OTHER I'ORMS OF PUNISHMENT IMPRISONMENT
ETC. EINES AND EORl'EITURES
OTHER FORMS OF PUNISHMENT
Transporfation is a jmnishmcnt very generally
employed. It is of two forms, life transportation
TRANSPORTATION 6$
)^ , and transportation for a term ^ . The former
variety is divisible, according to distance, into
three degrees — the distances being 2000, 2500,
and 3000 // respectively. The latter variety is
divisible, according to duration, into five degrees
— the limits of time commencing with one year,
and advancing by an increase of six months at
a time until the limit of three years is attained.
Probably the most usual form of transportation
is that for three years.
The distance to which an offender is to be
transported is calculated from his place of birth,
and, in the case of transportation for a term, it
is provided that an offender may not be transferred
further than the boundary of his native province.
In a sense all distances of transportation are
nominal, and certain distances from prescribed
province to prescribed province are laid down
for the varying degrees.
In addition to ordinary transportation, there is
also military transportation divisible, according to
distance, into four decrees — the mildest form
commencing with a distance of 2000 //, and
advancing by increments of 500 //, until the
66 TRANSPORTATION
distance of 3000 li is attained, and thence by
an increment of 1000 // to 4000 //.
As is very evident the punishment is extremely
flexible, and admits of varied fine gradations.
Cases of transportation are very numerous :
it is a fa^^ourite punishment, and this because
it rids the country of dangerous offenders, and
either usefully employs them, or at least confines
them to a given area; further, there are many
commutations from capital punishments to this
milder penalt}\
In regard of transportation for a period, it is
provided that an offender convicted of a second
offence, while his first term is incomplete, may
be sentenced to a further term, provided that
the two terms together do not exceed four }ears
a « f?n X € « -» # ^n ii tt # RR i^
^ii«5ilfli^#ii|5I^ C^'. H. A.
H. L. Vol. III. pp. 49 — 54).
If an offender has been transported at the
request of his lord ox his parents, it would appear
that, if the offence was not a very grave one,
they may apply for permission for him to return —
his punishment being dien reduced to i)enal servitude.
PENAL SERVITUDE 67
and this in turn to one hundred blows and one
month's cangue {v. various cases H. A. H. L.
Vol. I. pp. I o — I 2).
By the original law of the dynasty, where an
offender was sent into permanent transportation,
his wife was sent with him. But this was found
to give rise to many objections : if he died, his
widow was left among strangers : if he lived, she
was exposed to many temptations. It was determined,
therefore, in the reign of Tao Kuang, that if the
offender wished it, he miorht take his wife with
him, but if not, he might leave her with her
friends (H. A. H. L. Supp. 11). The old practice,
however, still applies in respect of permanent
transportation for certain offences to Mongolia.
Penal Servitude is of five degrees varying
from penal servitude for one year to penal
servitude for life. Its usual position is as an
additional penalty to transportation, there being
certain penal settlements throughout the Empire
whereat the offenders are put to work at certain
useful objects, as in the provinces of Kwangsi
Yunnan and Kweichow and, without the Eighteen
Provinces, in Turkestan, and (until recently) Formosa.
68
This punishment is commonly divisible into
three heads, penal servitude pure and simple,
military servitude and domestic servitude. Examples
of the first head are frequent and evident —
not indeed unlike our own penalty. Military
servitude ytt ^ is of very varying descriptions:
so an offender may merely be sent to militar)'
servitude on the near frontiers f^ ^ ^ tl ^ i
or he may be sent to military servitude in the
mines in Yunnan, Kweichow or the Two Kuang
l^#MSR®a'ia^^¥. Domestic
servitude, where an offender is sent into slavery
pure and simple, is also of a varying nature ;
so the slavery ma}' be in the household of some
meritorious official comparatively near at hand,
or it may be at some spot more remote, as in
the New Settlements (vSuno'aria and Kashgaria)
Bmmmx-
The punishment of the Bamboo is of very
ordinary occurrence, either as a penalty of itself,
or as a portion of another penalty. The implement
is of two kinds, styled the heavy ^ and the
light 1x — the former weighing roughly 2^/3
lbs. as against 2 lbs. The light or lesser bamboo
69
constitutes, according to the Code, the lowest
degree of punishment. The punishment is divided
into five degrees, starting nominally with ten
blows, and increasing by tens, until the nominal
maximum of fifty blows is attained. The actual
number of blows to be inflicted is, however,
four, five, ten, fifteen, and twenty, respectively,
for the five degrees. The punishment of the
heavy or larger bamboo is also divided into
five decrees accordinof to the number of strokes —
starting nominally with sixty blows, and advancing
by tens, until the nominal maximum of one hundred
blows is attained. The actual number of strokes
to be inflicted is for the five degrees, twenty,
twenty-five, thirty, thirty-five, and forty respectively.
The well-known punishment of the Cangtie
ftH Wa , familiar to all who have read anything
about China, is commonly resorted to for lesser
offences — though occasionally also for more serious
ones. It consists in effect of a square wooden
collar or frame, worn by the offender around
his neck, and rendering him incapable of feeding
himself. On the frame is written the name and
residence of the offender, and the offence of
70
which he is cruilty. A guard is placed in charge
of die offender, who is stationed for a time in
one spot, or perambulated through the streets,
as his custodian may think fit. The punishment
may be for any period — even for life — and
is more severe than it might casually appear to
be, for the lot of an offender restricted to a
confined and helpless position, and exposed to
a blazing sun in Southern China, or to a dust
storm or gale in Northern China, cannot be a
cheerful one.
Where an offender has been sent to penal
servitude for life beyond the borders, and commits
further offences, short of death, no aggravation
of penalty would seem possible ^ so therefore,
where it is not thought desirable to impose a
capital sentence, the cangue is resorted to according
to the following scale : — one year's cangue for
a first offence ; two years' for a second ; three
months' for a trifling robbery ; one year for an
offence involving transportation for a period ;
two years' for an offence involving transportation
for life ; three years' for an offence involving
military servitude.
PERPETUAL FETTERS — BRANDING - 7 1
An offender may be cangiied for life; as in
the case of a secretary, who being sentenced to
military servitude for life, knocked down a policeman
with his chain, and tried to escape as he was
starting for his place of punishment (H. A. H. L.
vol. IV. p. 33). In another instance, another
secretary was similarly treated, for having reverted
to vagabondage after being pardoned (H. A. H.
L. Supp. vol. IV. p. 35). In a third case, a
bannerman Ch'ang An ^ ^ was so sentenced
for striking his commanding officer (H. A. H. L.
Supp. vol. II. p. 42).
Perpetual fetters is a punishment not infrequently
met with; and there is a well-known case on the
point, wherein a member of the Imperial Family
was so sentenced for trying to smuggle in a
couple of women when on his way to exile
Not dissimilar from the two latter punishments
is the penalty prescribed for thieving beggars
and tramps in certain provinces — i. e. the wearing
for varying periods of an iron bar of about
53 lbs. weight (v. Larceny).
Branding ^jj ^ is employed for the purpose of
72 IMPRISONMENT — PRISONS — PRISONERS — JAILERS
identifying old offenders. It is ordinarily on the
face, but (as in the case of juveniles) may be
behind instead. A thief on a second conviction
is ordinarily to be branded a second time, so
that the number of convictions may be known ;
but an offender sentenced to a heavier penalty
for robbery committed during the time he is
serving his term of transportation is not branded,
as it is not considered a new conviction.
IMPRISONMENT PRISONS PRISONERS JAILERS
Imprisonment H^ ^ did not , in the ordinary
sense, exist as a punishment until a comparatively
recent period (infra). The object of imprisonment
seems to have been merely to retain persons in
safe custody until their execution or acquittal as
the case might be. It has gradually been introduced
either as a mode of commutation, or as an initial
punishment.
Imprisonment for three or four years, appears
to have been devised in the second year of
Tao Kuang, to meet those cases of offences by
women, where the gravity of the crime seemed
to render it advisable to prevent their escaping
IMPRISONMENT — PRISONS — PRISONERS — JAILERS 73
with the fine by which in the ordinary course
they were allowed to commute their sentence of
transportation, and where at the same time sending
them to slavery appeared unduly severe (H. A.
H. L. vol. III. p. 39).
Chinese prisons are loathsome and horrible dens
of iniquity and filth ; but, horrible as they are,
cases in which application is made for the release
^ ^ of prisoners of twenty years' standing shows
that they are not quite so awful as they appear
to be (H. A. H. L. vol. XII. p. 35).
The regulations made for a prisoner's comfort (?)
are not very numerous, but read justly enough.
Thus petty offenders under sentence of the cangue,
or offenders in confinement in a fortress, are to
be allowed a sheng 77 — about a pint — of
old rice a day, provided they are without other
means of support. Ordinarily it would appear that
their friends have to supply them with food.
Prisoners are allowed a wadded jacket in winter,
and medicine if they be sick — but not light or
fire. If over seventy or under fifteen years of
age, or if they be cripples, they are to be kept
separate, provided with clean mats and bedding,
74 IMPRISONMENT — PRISONS — PRISONERS — JAILERS
warmed beds in winter and cooling drinks in
summer. Prisoners under sentence of death or
charged with transportable offences are required
to wear prison dress (a reddish brown suit). A
prisoners's grandparents, parents, brothers and
sisters, wives and children, are to be allowed to
see him twice a month ; but they must not be
allowed in prison with him, and any food or
other comforts must be mven him throucrh the
jailer. Prisoners who have held the fifth or any
higher grade of official rank, or who have previously
distinguished themselves by their public services,
have a right to freely see their relations or
connections.
Prisoners may be sentenced to wear fetters or
handcuffs during their term (a regulation appjying
also to transportation etc.) — v. case of Chang
Ken-ch'ui 51 ffi ^ H. A. H. L. vol. III. p. 77-
but if their behaviour be good, and there be
no black marks against them ^ iijil ^ ^H ^
these may be removed.
Jailers are held responsible for the safety of
their prisoners as strictly as European warders —
in some cases more so ; thus in one instance a
IMPRISONMENT — PRISONS — PRISONERS — JAILERS 75
jailer was punished for allowing a prisoner to
take unintentionally an over-dose of febrifuge ; in
another, for allowing a prisoner to indulge in
terrapin which proved poisonous ; and in a third,
for leaving a chopper behind in the jail kitchen,
and thus enabling a prisoner to commit suicide.
A jailer who allows a prisoner to escape is
liable to a punishment graduated according to
the importance of the prisoner and the general
circumstances. Where a prisoner escapes through
the negligence of jailers, the jailer, principally
responsible, will be liable to a punishment two
degrees less severe than that to which the prisoner
had been sentenced : if more than one prisoner
escape, the jailer, principally responsible, will in
such case be liable to a punishment two degrees
less severe than that to which the most guilty
of the prisoners had been sentenced. Where the
jailers have been overpowered, whether b)^ the
prisoners themselves or by an incursion of their
friends, the above penalties are subject to reduction.
Ill treatment on the part of the jailers, whether
by wounding their prisoners or suppressing the
food allowance, is punishable — wounding, as
76 FINES AND FORFEITURES
wounding in affray, and suppression of the
allowane, as embezzlement of the same amount
of Government stores.
FINES AND FORFEITURES
Fines ^ ^j as a form of initial punishment,
apparently do not exist in China : where they
are levied, it is by way of commutation when
there is reason that the penalty affixed by statute
should not be carried out. The practice is an
ancient one, for in an edict of Mu Wang of the
Chou dynasty (B. C. 952) it is stated inter alia^
that where the balance of evidence is in favour
of the prisoner, he is to be given the benefit
of the doubt, and allowed to commute the penalty
for a fine.
Possible, though doubtful, exceptions, to the
general rule that fines are considered merely as
a commutation, are in regard of the privileged
classes and the stoppage of an official's salary
for misconduct or inertia. In the case of the
privileged classes offences are, as a rule, punished
by a fine — though even in that case the fine is
regarded as a commutation, and the sentence is,
FINES AND FORFEITURES 77
death, transportation, cangue, or bamboo, as
ma)' be : while, as regards the stoppages of the
salaries of officials for supposed want of vigilance
or failure in the prevention of crime within their
jurisdiction, such measures, though, in fact, a part
of the general law, are rather, according to our
Eno-Hsh understanding-, an official device affectino;
officials only.
Of a fine pure and simple, where a fixed sum
of money is laid down in the Code as the penalty
clue the commission of an offence, there is apparently
no instance. Chinese legislators would be shocked
at the idea that a breach of the peace should
be visited by a fine of forty shillings, or that no
other penalty should attach to offences of greater
heinousness.
Fines in general go to the Court, but in the
case of accidental homicide or injury are paid to
the relatives of the deceased or to the injured
party, and they are in this case over and above
the medical expenses etc. Where more than one
person is held responsible for an accident the fine is
made up between the various parties. Where there
is more than one victim a double fine is imposed.
78 FORKEITURES
Forfeitures^ whether to the State or to the
person aggrieved, exist, but are not so common
as, until lately, they were in our own country,
in that felony per se does not have that effect
— it is only in cases of treason or robbery from
the State that the Government lays claim to the
property of the offender. Further, in some cases
of murder and arson, the goods of the offender
are made liable to satisfy those by whom injury
has been sustained.
SECTION IV PUNISHMENTS NOT LEGALLY RECOGNISED
UNDUE PUNISHMENT
PUNISHMENTS COUNTENANCED BUT NOT
LEGALLY RECOGNISED
Exposure until death: — This is a common
treatment adopted in the case of notorious offenders.
The offender is exposed in a tall cage, his head
resting in a pillory on die top, and his feet resting
on three tiles at the bottom — without food or
water. The agony of this position in a blazing
sun may, and frequentl)- does, cause the victim
PUNISHMENTS COUNTENANCED BUT NOT LEGALLY RECOGNISED 79
to kick away the tiles and strangle himself; but
if he does not do so after some twenty-four
hours have expired, a tile is removed — it being
supposed to have been kicked away by the offender ;
and if the greater agony of standing on tiptoe
is still endured, the second tile is removed the
second night, and the third day the offender is
found there dead.
The punishment is distinctly illegal, for an
official allowing it, or ordering it to be exercised,
is liable to heavy punishment for applying penalties
unknown to the law. It is resorted to, therefore,
only in the case of offenders whose crimes have
made them objects of abhorrence, and where
the authorities can count on being upheld by
public opinion, and that no complaint will be
made against them. The object appears to be
the making an example where the man's offence,
though capital, cannot be carried out until confirmed,
and long dela}- would thus be caused if the proper
course was followed.
The punishment is inhuman, but, in the words
of a high official, when remonstrated with against
so torturinof to death three hardened offenders : —
So UNDUE PUNISHMENT
"The men are atrocious criminals, and an example
"is necessary to stop the continuance of the crime of
"which the)' have been guilty. If these men are
"dealt with in the ordinary course, it will take a
"year, or perhaps two, before the)- can be executed.
"We cannot legally cut their heads off, so we
"confine them, and let them die."
Castration: — It is commonly said that this is
one of the punishments recognised by Chinese Law ;
but it is hardly recognised — it is countenanced.
It is a practice allowed, even ordained, in grave
cases of treason, to prevent the continuance of
a stiff necked and adulterous creneration of traitors.
The process is not inflicted on the offender in
person, and only on the sons when they attain
the age of sixteen, so that if they die before
that age, they pass to the other world unmutilated.
UNDUE PUNISHMENT
In this reorard distinction is drawn as to the
manner in which the undue punishment was
inflicted, the effect thereof, and the aniimts of
the officials concerned.
And firstl)' the question of aniiuus is important,
UNDUE PUNISHMENT 8 1
for if there be no evidence of feeling, and the
punishment administered be that provided in die
statute, though the victim die, the official who
is responsible is only to be reported on, and a
nominal punishment inflicted, hi the case of Chu
Lin-cheng ^ J^ f|Jc an official was denounced
for beating an impertinent tipao to death, and it
was by special decree ordered that a nominal
punishment only should be inflicted, and that he
should be retained in office (H. A. H. L. vol.
LX. p. 38).
Where the responsible official parties have
been moved b)- strife or anger or otherwise,
the treatment is different. If the heavy bamboo
be used instead of the light, but death does not
ensue, the presiding magistrate will be liable to
40 blows : if death ensues, the magistrate will
be liable to lOO blows — a sufficient sum to
defray the expenses of burial being also forfeited.
The attendant actually inflicting the undue
punishment will incur, in either case, a degree
less than the above penalties. Distinctions are also
drawn as to whether bribes have or have not been
accepted.
82 UNDUE PUNISHMENT
Furthermore, if a punishment be inflicted on
a more vulnerable part than that required by
law, so as to produce a cutting wound, the
person who has inflicted, or who has caused to
be inflicted, such unlawful punishment, becomes
liable to a penalty two degrees less severe than
in the case of similar injuries in affrays between
those of equal standing. If death ensues the
punishment is increased, and burial expenses
forfeited to the family of the deceased. A person,
who in such cases inflicts the undue punishment
in obedience to orders, will incur a penalty less
by one degree than his superior.
CHAPTER III
COMMUTATION AND MITIGATION
SECTION I GENERAL CONSIDERATION COMMUTATION
GENERALLY AND SPECIALLY CIRCONSTANCES
ATTENUANTES
GENERAL CONSIDERATION
This is a prominent feature of the Chinese
system. The leniency may arise roughly speaking
from three motives, considerations of equity,
considerations of political expediency , and
considerations of morality or religion. Thus the
commutation of punishment prescribed by the
Code in the case of various offences (homicide by
misadventure, etc. etc.), commutation originating
from circoiistances attemiantes ^ etc. etc., in general
arises from equitable considerations, and so also
do commutations on account of lunacy, delivering
84 GENERAL CONSIDERATION
oneself up to justice, etc. The privilege allowed
certain classes, arises from considerations of political
expedienc)-. The mitigation or commutation or
special treatment provided in cases of sex, youth,
great age, or a sole representative, arises from
moral or religious considerations (though, as time
passes, the motive tends to become equitable,
rather than pureh' moral or religious). B\- religious,
it must be understood, is meant the regard paid to
the tenets laid down in Chinese philosophy generall}-,
and, especially, the respect which the Chinese
attach to seniors, the filial relation and family
succession — the foundations of their religion,
and the fabrics of their orovernment. In addition
also to certain fixed and definite reasons for
commutation and mitigation, there must likewise
be mentioned the Acts of Grace passed from
time to time commuting and mitigating penalties :
the cause of this, now a regular practice without
other motive, was probably originally political
expediency to gain popularit)\
COMMUTATION AND ITS EFFECT GENERALLY AND SPECIALLY 85
COMMUTATION AND ITS EFFECT GENERALLY
AND SPECIALLY
Where a penalty is commuted it is to the
secondary penalty imposed b)- the law under
which the particular case comes. But the effect
is very varied, hi some cases, where for surrendering
to justice or other reasons one degree of punishment
is remitted J^ — ' ^ it may merely mean that
instead of being summarily executed, the execution
is referred for consideration, or that instead of
being sentenced to decapitation , sentence of
strangulation is passed ; but it may also mean
that the penalty passes at a bound from decapitation
and exposure of the head to simple transportation
(H. A. H. L. vol. XXXII. p. 11), or to a lesser
penalty {e. g. a fine).
In the case of accidental homicide the sentence
of death is recorded, but is simply formal, and
the penalty is commuted to a fine paid to the
relatives of the deceased ; in the case of accidental
injur)', the penalty is commuted to a fine paid
to the injured party himself When there are
extenuatinor circumstances in the case of accidental
86 COMMUTATION AND ITS EFFECT GENERALLY AND SPECIALLY
hoijiicide or serious lasting injury, the sentence
of death ma)- be commuted to transportation,
thence to a fine in lieu thereof. Passing attention
ma}- be directed here to that special commutation,
accorded as a matter of course on claim made, in
cases of murder where one of the capitally
responsible parties dies in prison before the case
is settled {v. circonstances attenuantes).
There are also many other less important
offences receiving as a matter of course ordinary
or special commutation.
More than one statute in mitigation may be
pleaded in the same case. Thus in the case of
Ch'en A-lien |^ fpf 5S the capital sentence for
homicide was commuted to transportation for life
under one statute, and further commuted to
transportation for three years under another. (H.
A. H. L. vol. XLIV. p. 90).
CIRCONSTANCES ATTENUANTES
Justificatory circumstances U ^[^ ^ iSfc 2 fw
are allowed as a matter of course in certain cases,
sometimes arising from the mere conditions or
circumstances under which an act was done,
CIRCONSTANCES ATTENUANTES 87
sometimes from the mere position of the parties
{i. e. relationship), and sometimes from both these
causes combined.
Examples of the first category are ver)' obvious ;
— a man in self-defence kills an assailant who
attacks him with murderous intentions: a person
who has a right to interfere seriously injures an
offender he is trying to seize: or of another class
where an offender in certain offences stops short
of the commission of the full offence {i>. Robbery
and violence)^ or the case of persons taking a
minor part in the commission of a serious offence.
Examples of the second category are extremely
numerous, arising chiefl)' in cases where the position
of the parties is that of parent and child, husband
and wife etc. — instances of this class will be
found under these headings, and in various parts
of this volume.
Examples of the third category are also
numerous. Thus if a husband catches the paramour
of his wife or daughter in the act, and in the
first heat of righteous indicjnation or without
deliberate intention M^ HJ ^ r^t he kills him, the
circumstances will be allowed. Not so, however,
88 DELIVERY UP TO JUSTICE
if the said hiisbaud ties up the villain and cuts
Ills throat, because he was abusive {v. case of
Tu Lai-chano- t±3RS, H. A. H. L. vol. II.
p. 29). Nor where a person chances to kill a
man he catches with his brother's wife (z'. case
of Lo Chin-ling M#^#, H. A. H. L. vol. II.
p. 30). Again justificatory circumstances will be
allowed as a matter of course when a man kills his
wife intentionally or unintentionall)', if she is shown
to be guilty of unfilial conduct to, and abuse of, his
parents : or when she commits adultery without his
connivance: or where she does him actual bodily
harm, if he kills her in the heat of the moment.
And so also of other offences.
Delivery up to justice. — If before an offence
has come to light, the offender himself la)s an
information, or his near relatives with or without
his consent hand him over to the authorities, he
will escape the penalty due his offence. But in
such cases the confession must be full, and the
person must dc^liver himself up in ver\' truth
Z§fBZ (H. A. H. L. vol. IV. p. 59). If
there be injur)- to life or limb the rule does not
DELIVERY UP TO JUSTICE
hold in entirety — but even in this case the
offender will merel)- be punished for the simple
killing or wounding, as the case may be. So in
an instance where a man burnt down a straw
shed belonmnor to one against whom he bore a
grudge, causing thereb}' the death of a child
who was sleeping within, a fact of which he was
ignorant. Running away he met his elder brother,
and told him what he had done. The brother
handed him over to the authorities, who could
make nothing out of the case. As the offender
did not know the child was within, it could not
be said to be a case of deliberate killing f^ ]^
i& ^ ^ ^ 1^ jR , and as there was no struggle,
it could scarcely be called killing in course of a
fight 31^ i^B ^ ^ mi 2 ^ -The Board, however,
being appealed to, at once laid down that it was
a case of killing consequent on malicious arson :
as regards the property destroyed the law allowed
compensation J^ ^J5 F? ^T IIp til i and as regards
the child it was simple homicide only (z'. case of
Ch ao Erh ^ Zl , H. A. H. L. Supp. vol.
XIV. p. 49).
Where it is the culprit's relations that deliver
90 DELIVERY UP TO JUSTICE
him up to justice a curious result may follow.
Thus where two brothers were concerned in a
case, one gave himself up to justice, and at the
same time betrayed his brother's hiding place,
and both of the brothers were allowed to benefit
(H. A. H. L. vol. IV. p. 58).
The delivery to justice must take place before
a complaint has been made, otherwise a mitigation
only of one degree less than the due penalty
will be allowed (H. A. H. L. vol. XIV. p. 76).
It will not be sufficient that the culprit give himself
up, if he knows that a charge is about to be
preferred against him 9^A^u'\^S~W^
^ ^ s » « it ^ # 11 * 1^} * IS gi
~^^ (H. A. H. L. vol. XIV. p. 81). But he
will be entitled to full benefit if he did not know
that the charge was about to be preferred,
though it has actually been filed before he gave
himself uj), if penitence and not fear influenced
his action [id.).
If the injury be irreparable, the fact that the
culprit delivered himself u[> will not avail him.
SPECIAL COMMUTATION IN HOMICIDE WHERE ONE OFFENDER DIES 9 1
(H. A. H. L. vol. XX. p. 50). So in the case
of Po Yu-nan ^ ^ ^ where a man defiled a
grave (P. A. S. P. vol. VII. p. i).
An accessory will be entitled to mitigation of
his sentence, if he gives information leading to
the arrest of his principal, but it must lead to
the arrest within a given time, ordinarily a year.
(H. A. H. L. vol. XIV. p. 82).
A very curious case is that of Hsii Ch'ung-wu
f/Jt yll 1^ , showing die strange bearing the
parental relation may have on the subject. In
this case the offender was guilty of hushing up
for money the murder of one of his sons. Another
son brouo-ht the case to li<iht, and it was held
that the father might benefit and be excused,
while the son on the other hand was sentenced to
one hundred blows and three years transportation
for denouncing his brother's murder, because in
doing so he had brought his father into danger
of the law. (H. A. H. L. vol. XXXVI. p. 56).
Special coinmutation in homicide ivhere one
offender dies in prison before the case is settled. —
This curious form occurs in the case of murder,
where the person, who planned the offence, or one of
92 IN TRISON BEFORE CASE SETTLED
the accomplices, who had inflicted serious injury
on the deceased, chances to die in prison before
the case is settled, when the actual murderer
can claim that the capital punishment to which
lie is liable shall be commuted to transportation
for life, on the ground that life has answered
life : but the person who dies must be one who
might have been capitally liable in the case,
and he must have died in actual custody and
not while out on bail, ag-ain he must have died
before the case was settled (case of Hou Meng-pu,
^^ h, P. A. S. P. vol. XXV. p. lo).
SECTION II MENTAL AND I'HYSICAL DISABILITY AGE
SOLE REPRESENTATIVE WOMEN
MENTAL AND PHYSICAL DISABILITY
Relatives are bound to report cases of lunacy
^ ^ , and exercise strict supervision over the
lunatics, under penalty of eighty blows heavy
l)amb()o, if the lunatic kills himself, and one hundred
blows if he kills anyone else (H. A. H. L. Supp.
vol. X. p. 57) — V. Statutes ^ ifi fi ^ and
MENTAL AND PHYSICAL DISABILITY 93
9^ A m m <& A T^ mm- n '0- it is
doubtful if the)' are liable where the access of
lunacy is sudden and unexpected. Lunatics are
in general required to be manacled, and the
relations must not remove the manacles without
proper authority (H. A. H. L. vol. XXXII. p. 78).
If the relations of the lunatic represent that the)-
have no proper place of security, the magistrate
will take charo-e of the lunatic. Lunatics are not
to be released on the plea of recovery until
after the expir)' of a term of years, unless at
the special petition of their parents, and after
enquiry as to the ability of the latter to prevent
their doing injury thereafter.
Lunatics are held responsible for their acts,
but the ordinar)' penalty applicable is commuted
as, e. g. in murder to imprisonment with fetters
subject to H. M.'s pleasure. In the case of a
lunatic who commits a fatal assault and has
recovered at the time of trial, it is essential that
the lunacy should have been reported before the
offence was committed ;5ti ^ $E W ^ ^ • o^"
otherwise the family of the deceased must assent
to the verdict S( M BB W K ~H" ^ 1 ^^^ sentence
94 MENTAL AND PHYSICAL DISABILITY
of death will be recorded (H. A. H. L. vol.
XXXII. p. 57), die penalty therefor will be
commuted to a fine of Tls. 12. 42, and the
lunatic will be imprisoned in perpetuit}\ If the
lunatic recovers, and there is no appearance of
any recurrence of the malady within a fixed
time, he will be griven in change of his friends
and released : but a fixed time must elapse,
and mere proof of cure is insufficient (case of
Liu Chin-liang flj ^ ft , P. A. S. P. vol. XVII.
p. 39). The time b)- law was originally twenty
years, but if the lunatic be seventy years of age
or upwards, or in failing health, the term is reduced.
Where the question of relationship comes in, the
special laws for the benefit of lunatics are in a
measure overriden -, but though the crime be heinous
in the last degree (save in one instance — fiii)
a special confidential report is to accompany the
sentence, the penalty is then invariably commuted
to death subject to revision and further commutation,
and, in point of fact, is never carried out. This
treatment moreover holds where the malady was
transitory. In thc^ case of M''^ Chung nee Huang
^ ^ ^ , a woman murdered her daughter-in-law
MENTAL AND PHYSICAL DISABILITY 95
during a fit of madness from which she subsequently
recovered. For this (after representation) she was
sentenced to a commuted penalty of one hundred
blows, redeemable by fine, given to her friends
to take charge of, and the magistrate directed to
see personally that the proper manacles were put
on (H. A. H. L. vol. XXXII. p. 73). Even where
a wife kills her husband, a case in which it was
for long a moot point whether any representation
could be made, it is now provided that though
she is to be sentenced to the usual penalt)', a
memorial to His Majesty is to be presented by
the Board in consultation with the Judicial Committee,
if there is clear evidence of lunacy (H. A. H. L.
vol. XXXII. p. 72). It must however be borne
in mind that so far as concerns the sentence^
lunacy is no defence : so if a lunatic wounds his
father he must be sentenced to decapitation without
appeal, but there is straightway made out the
special report to accompany the sentence, which
effects a change in the penalty to decapitation
subject to revision at the Autumn x^ssize — when
the case is further dealt with (H. A. H. L. vol.
XLIV. p. 32).
96 MENTAT, AND niYSICAL DISABILITY
Where, however, a lunatic deliberately kills
his parents or grandparents, a representation will
not serve. Here, b)' decree of the third )ear of
Tao Kuang, he is to be executed at once on the
spot where the murder was committed, if it be
within 300 // from the provincial capital and no
river intervenes, otherwise on the city execution
ground without reference to Peking ^ bF9 3E np
^ ff IE ft (H. A. H. L. vol. XLIV. p. 34).
And the sentence (slicing to pieces) is to be
carried out in all its horror, even though the lunatic
be already dead; as in the case of Chiang
Ch'u-t'ien ^ ^ '^ where the quartering was
ordered to be carried out, though he was certainly
mad at the moment of the murder, and had been
cut down and killed on the spot by his mother {id).
Ordinary Acts of Grace and Gaol Delivery
do not apply to lunatics, unless they have
recovered and shown no sign of the recurrence
of their malady for several years -, and a lunatic
guilty of an offence not ordinarily capital is not
to be released because he is supposed to have
recovered (H. A. H. L. vol. XXXII. p. 59).
Delirmm. — This more temporary and
PHYSICAL DISABILITY 97
transitory form of lunacy is held to be no
sufficient excuse for homicide — it being more
often than not the result of personal indiscretion.
In certain events, however, the penalty will be
commuted or deferred in its execution. So in the
case of Liu T'ing-jen ^J ^^ f i , a man was
sentenced to strangulation for killing another during
the delirium of fever M K .f . fi ^ # ^ 3^ $E
and the execution was deferred (H. A. H. L.
vol. XXXII. p. 57).
Physical Disability. — An offender under certain
physical disabilities may, under certain circumstances,
be allowed to commute the penalty of any ordinary
offence that he may commit, and where guilty
of a capital offence, he may in like manner be
excused on payment of a fine. It is laid down
that thouorh a man whose rig-ht wrist is broken
may be allowed the benefit of the act, the fact
that he is deaf or dumb will not excuse him.
The totally blind come within the act, but not
the man with one eye (H. A. H. L. vol. IV.
p. 1 6), or the man with one leg — the disability
must be such as to prevent a person from walking
or moving like others. Where a person is allowed
gg AGE AGED OFFENDERS
to commute the penalty of transportation for
a fine, in view of a bad attack of rheumatism,
he is free for good and all, though he recovers
afterwards (H. A. H. L. vol. IV. p. 17).
AGE
In the case of great age, and in the case
of youth, a certain tenderness is shown, and
causes substantial mitigation in the punishment.
Aged offenders. — All persons aged seventy
years or over are allowed to commute any
penalty of or below the degree of transportation
for life by a fine, in accordance with a fixed
scale ; but if, after they have once been allowed
to commute the penalty, they intentionally offend
again, the sentence will be carried out on the
second conviction. Where the offender is over
eighty years of age, still greater leniency is
shown apparently. Such persons are to be
recommended to the particular consideration of
His Majesty, and very atrocious crimes are
allowed to be perpetrated with comparative
impunity. On one occasion an old man caused
his victim to be burned alive : he was sentenced
JUVENILE OFFENDERS 99
to death : but placed on the deferred hst (H.
A. H. L. vol. IV. p. 12). So in numerous
instances of ordinary murder cases, the aged
murderer was merely punished with a fine.
The reason given by an authority for this
strange state of the law is that there is little
fear of one so old again offending ; so where
a man of seventy set all his neighbours by
the ears, and prompted them to bring false
accusations against one another, the Board
declared that the law should be carried out
in earnest, and the old pettifogger sent to the
hulks, where his unimpaired mental faculties
could do no further harm (H. A. H. L. vol.
IV. p. 15). A person aged eighty years or over
will, however, be punished for treason or rebellion.
Persons over ninety years of age are not, save
also in cases of treason or rebellion, to be
punished, in any case.
Jtivenile offe7iders. — Under seven years of
aofe, the offender will be excused save for treason
or robbery. Under ten years of age — save
in cases of treason or robbery — the offender
is to be recommended to the particular
lUVENII.E 01'1'EXDKRS
consideration of His Majesty. Under fifteen years
of age, the offender is allowed to commute any
penalty of or below the degree of transportation
for life by a fine, in accordance with a fixed
scale. Instead of a fine, whipping is ordinarily
resorted to in cases of simple theft, however
often the offence be committed; the commutation
to a fine being- reserved for cases of theft
which involve transportation. Branding is not
generally employed in such cases, but in Peking,
and within the metropolitan area, if the offender
is over thirteen years of age, and has similarly
offended more than once, he is to be branded
like an ordinary offender, and is further to be
given in charge of his parents or friends.
Such an offender is, moreover, to be treated
as an old offender. (H. A. H. L. vol. XIV. p. 53).
The branding, it is to be noted, is not to be
on the face, but behind, and if the offender
behaves well for five years, it may be obliterated.
The rule as to commutation for a fine
seems also, under certain circumstances, to extend
to capital penalties. Such sentences are ,
generally speaking, recorded, but under certain
JUVENILE OFFENDERS
circumstances, even where a child has killed
another, this formality may also be omitted.
The circumstances must accord with the case
of Ting Ch'i San Tzit "T ^ ^ IT , wherein
a boy of fifteen or under killed a man who
treated him badly, and claimed to be exempt
from the capital sentence. It was laid down
that the man killed must be four years older
than the lad [scil. at least), that he must be
the aggressor, and must be unreasonably violent.
In other cases, though the offender was fourteen
years of age only, he appears to have been
sentenced to death. But, in point of fact, the
only rule on the subject seems to be that of
common sense; if sympathy is with the juvenile
offender, he will be allowed the benefit of the Act —
ifnot, he will be denied it (H. A. H. L. vol. IV. p. 2).
Where a boy under fifteen years of age is
led astray by those older than himself, and
takes part in robbery with violence under their
compulsion, the capital penalty is commuted
to transportation for life : if the boy has been
led astray more than once or twice, the plea
is not to be entertained, unless there is very
RECKONING AGE
Strong evidence to support it. In the case of
T'ang Pa-erh ^ /V ^, a boy was eventually
allowed to commute the capital penalty for
servitude in Kirin (H. A. H. L. vol. XIV.
p. 84) : but the commutation was only allowed
after much difficulty, as it was by no means
the first time that the lad had been led astray.
In reckoning age^ it is the age calculated
in accordance with common custom that the
person in question will attain in the current
year, not the actual number of months that
have elapsed since his birth 31 — ' "W ut ^
^P^^eWiSfiaiil^iT (H. A.
H. L. vol. IV. p. 22). An offender aged seventy
is entitled to the benefit of the Act, though
he is only in his seventieth year, and has
not yet seen his seventieth birthday. So again
of a child aged seven years and one month,
being in his eighth year, he cannot be considered
seven years of age. And this, it is convenient
to observe, is the general rule where any question
of age comes in, as e.g., in the case of murder
of a child under ten (case of Feng Chiu-erh,
% iL%.^. A. S. P. App. MI), rape of a girl
SOLE REPRESENTATIVE IO3
under twelve etc. Furthermore, in the case of
youth, the age alone considered is the age at
the time the offence was committed (not at
the time of trial) : in the case of an aged
offender, age may be pleaded not only at, but
after trial, if the sentence has not been carried
out by the time the necessary age has been
attained.
SOLE REPRESENTATIVE ^ jjtli
Chinese law regarding the continuance of the
succession of a family as infinitely important, in
general allows an offender to escape the
consequences of his offence — usually in the end
by commuting the penalty to a fine — if he is
the sole dependence of his family JS ;^ "§[ ^•
Not seldom no fine even is imposed, the offender
escaping scatheless. The leniency extends to
most classes of offences it would seem, even
to cases of homicide. So in an instance of
unintentional homicide, an offender may plead
that he is an only son of a chaste widow,
when his name may be placed on the deferred
list. (H. A. H. L. vol. II. p. 22). The leniency
I04 Sm.K RErRKSK.NTATlVE
does not apparently strictly extend to cases of
intentional homicide, and certainly does not to
the gravest offences, such as treason ; but as
regards the former, it is open to question
whether so strong a plea would not prevail
in every instance. So if a sole representative
kills his wife, the view taken is that the
succession is more important than a better
half's life m^^i^u^ni^m B 1^
S (H. A. H. L. vol. II. p. 53).
An only son, the sole support of aged
parents, though excused transportation, may not
be excused straightway. So where a son killed
his half-brother, and obtained reduction of the
the capital penalty to transportation for life,
on the ground that the homicide was in his
mother's defence, and jjut in the further plea
that he was a sole representative, in order to
get entirely excused, the Emperor declined to
allow him to go free at once. ''He is somewhat
"forward;" said His Majesty, "detain him for
"a year or so, until this quality is corrected."
Though excused punishment — transportation,
hard labour, whatever it may be — a sole
SOLE REPRESENTATIVE I05
representative must make good the amount of
money etc., that he may have stolen, or the
funeral expenses etc., the result of his offence.
It was formerly the rule that where the plea
of a sole representative was advanced, the
Governor had to investigate the circumstances
in person. The relatives of the deceased were
not required to give bonds assenting to the
plea, but they were to be present when it was
urged, and were to have an opportunity of
protesting against its allowance. As these
provincial investigations were shown to be
extremely inconvenient, from the difficulty of
collecting the witnesses , it was eventually
determined, that where the scene of action
was over eight hundred // from the provincial
capital, the Intendants of Circuit should deal
with the case, and that where the relatives
were too old or too sick to appear, deputies
might take their evidence at their abode (H.
A. H. L. vol. II. p. 42) — cf. evidence de
bene esse.
The existence of this plea accounts for some
incongruities in the law, and the celebrated
lo6
American case, wherein a man who was
convicted of murdering his father and mother,
pleaded in extenuation that he was an orphan,
has its parallel in the case of Wu Erh-tztt,
;^ Zl -J* , who successfully pleaded that he
was an only son , and thereby entitled to
commutation of the penalty of his offence,
though he became so by killing his brother —
the offence for which he was being tried (H.
A. H. L. vol. II. p. 5 7).
Akin to the plea of sole representative is
the plea of sole support of aged relatives
WOMEN
Women are ordinarily allowed to commute
transportation and penal servitude by fine —
the former penalties being considered inapplicable
to them. The leniency , under exceptional
circumstances, has been disallowed ; so in the
case of M''^ Chu, :^ j^ , who was declared to
be such a virago, that neither her own, nor
her deceased husband's family would have
anything to do with her ^ iK j^ ^ ^ MiM-
107
The virago was accordingly sent to work out
her sentence of transportation on penal servitude
in a Tartar garrison (H. A. H. L. vol. XLVIII.
p. 80). According to the old law, women were
not to be imprisoned, save in capital cases, and
in cases of adultery — and the penalty was
commutable by fine. This leniency has been
altered (v. Imprisonuicnt).
Bambooing, again, is a punishment which
Chinese decency considers should not be inflicted
upon women, and is ordinarily commuted for
a fine. In the case, however, of those who have
led licentious lives, and so forfeited their claims
to consideration, the punishment will not be
foregone (H. A. H. L. vol. XXVII. p. 54) —
and so also of adultery. Squabbling wives and
concubines are also considered suitable subjects
for the bamboo. Where the punishment is
inflicted, the woman may ordinarily retain both
her inner o^arment and a singrle outer one :
in the case of adultery and offences of a like
disgraceful nature, however, the inner garment
alone may be retained.
Even licentious women (though receiving,
108 rUIVU-liGE AND rRlVU.KGl'.U CLASSICS
as above stated, their quantum of the bamboo),
are allowed to commute transportation for the
cangue accordin<^ to scale. Thus, twenty days
cangue are considered the equivalent of one
year's transportation, and ten days are added
for each additional year of the latter punishment
— e.g.^ thirty days cangue ~^ two year's
transportation, forty days — - three years' —
until the limit of two months' cangue has
been reached, which is considered as an
equivalent of transportation for life.
SECTION III PRIVILEGE AND PRIVILEGED CLASSES
PRIVILEGE AND PRIVILEGED CLASSES
Privilege is acknowledged before the law,
and eicjht o-rounds therefor /V ^ are recorded
in the j^ jjis, and incorporated in the Code, /. c.
Imperial connection, length of service, worth
of service, righteousness, ability, patriotic zeal,
high rank, and privileged descent. In the wider,
but not the technical sense, the treatment of aged
offenders, of juveniles, of sole representatives,
TRIVILEGE AND PRIVILEGED CLASSES IO9
and of women, is in China a question of
privilege, and the objects themselves form
into very real classes of privileged persons.
The effect of privilege is to cause considerable
mitigation, and to confer certain favours — in
either case, strictly legal effects duly incorporated
in the system.
On a privileged person committing an offence,
a representation thereof is straightway made
to the Emperor, and it is not lawful to proceed
further in the case, until His Majesty's commands
have been received — and the privilege further
extends to a privileged person's parents,
grandparents, wife, son, or grandson. A traitor
will not receive the benefit of this law.
The privileged classes herein dealt with are
the Imperial connection, the nobility, officials
and graduates.
In regard of the Imperial Family, there are
included herein, all relatives of His Imperial
Majesty who are descended from the same
ancestors, all relations to the fourth degree of
His Imperial Majesty's grandparents, all relations
to the third degree of Her Majesty the Empress,
PRIVILEGE AND PRIVILEGED CLASSES
all relations to the second degree of the Heir
Apparent.
A case in which a member of the Imperial
Family is concerned is not to be dealt with
through the ordinary channels, but such member
will be dealt with differentially, and receive lenient
treatment. The privilege is comprehensive. Thus
in the case of Heng Te, fg. ^ , the offender
became drunk and unruly in a magistrate's
office : the Board decided that he oug-ht to
receive eighty blows, but as he was a member
of the Imperial Family, and an hereditary
official, the case was to be left for the Board
of War to fix the penalty (H. A. H. L. Supp.
vol. X. p. 67) — which latter was probably
either mitigated to a fine or excused. This
differential treatment often takes the form of
stoppage of the maintenance allowance "^ f^
for a period — sometimes for ten year's or
more : and this discipline extends to even the
Princes of the Blood.
That important class, the Imperial eunuchs
"7^ ^ 1 have also many privileges similar to the
foregoing, but in less degree. They are members
PRIVILEGE AND PRIVILEGED CLASSES
of the Imperial Household, and therefore entitled
to consideration. But they are regarded in
ways with a somewhat subtle tenderness : they
must not have any intercourse with the outer
world Z-mii:^M{ihA^^. and the
magistrates are responsible for their arrest if
they are found outside Peking (H. A. H. L.
vol. LI. p. 71). But though the Emperor
Tao Kuang insisted upon this latter point,
they do in fact occasionally visit the provinces.
A head eunuch ^ ^Mj^ ^ n^ay be treated
with greater severity.
The official class, especially officials in office,
receive exceptional treatment. Any official
sentenced to death may claim commutation
to transportation, and when sentenced to
transportation, unless the offence be in itself
infamous, may claim exception from branding
(H. A. H. L. vol. XL p. 38). Any official
sentenced to banishment (2;^</corporal punishment
will be required to undergo the former, but
will obtain remission of the latter without fine.
Any official who has been degraded may also
in such case commute the corporal punishment
PRIVILEGE AND PRIVILEGED CLASSES
— but here a special memorial must be
submitted for the Imperial consideration in
each instance. (H. A. H. L. vol. I. p. 4).
Any official sentenced to banishment may
obtain commutation to corporal punishment,
and then may obtain remission of the latter
by paying the full fine.
The person of an official in office is regarded
with considerable special solicitude. Offences
by such an official in his public capacity are,
in practice, regarded with comparative leniency,
though in law such cases are punishable with
penalties of a varying number of strokes with
the bamboo, commutable by forfeiture of salary
for varying periods — degradation being
accorded in the more serious cases. Offences
by an official in office of a private character
are visited with somewhat greater rigour than
the above — forfeiture of salary and degradation
being the correctives as before. It is to be
noted that an official must hold office and be
on full ])ay, for offences committed by or against
him to be considered as offences by or against
officers of the Government (H. A. H. L. vol.
PRIVILEGE AND PRIVILEGED CLASSES II3
LII. p. 46). But although this is so, if an
official retires in a reo^ular manner from office,
his other privileges still continue, and his person
is still sacred so far as those previously under
his jurisdiction are concerned. So in the case
of Chang Wen-hsiu :R ^ ^ , sentenced to
decapitation for causing the death of a retired
police officer, the Board disapproving the
original provincial sentence of strangulation
for killing in an ordinary affi'ay (P. A. S. P.
vol. XIX. p. 33). Officials are considered
to have retired in a regular manner, when
transferred from one post to another, or when
they have obtained leave to retire, by reason
of infirmity, age, or the death of relatives.
Persons who have acquired honorary distinctions,
on account of the elevation of their children
or descendants have, in these particulars, the
status of officials who have retired regularly.
Offences committed by officials prior to their
elevation, but not tried until subsequently thereto
may be redeemed by fine according to scale.
An official degraded for an offence of a private
nature is in the position of an ordinary individual.
114 rUlvil-EGE AND PRIVILEGEn CLASSES
The nobility and officials (in or out of office)
of above the 5"^ grade enjoy certain other
amenities. In either case, if the offender be
in prison, his relatives have a right to see
him, and if he be sentenced to trans])ortation,
they may accompany him on his way. Again,
where such an offender dies, whether in gaol,
or on his way to his place of punishment, the
evidence of his relatives is to be included in
the circumstances of the death.
Members of the Tartar Banner force are to
receive corporal punishment, but with the whip,
and not with the bamboo. As for transportation,
they may commute the same for the cangue,
according to scale.
Graduates (the literati class), are also highly
favoured, and it is immaterial whether the degree
be a bought one, or obtained in the ordinary
manner. Graduates are allowed to commute
ordinary offences by paying a fine, but not so
where the offence be rape or robbery, or
offences of a disgraceful character (H. A. H,
L. vol. XVI. p. ^^^j). A graduate, like an official,
may, it would seem, if sentenced to death, claim
ACTS OF GRACE 1 1 5
commutation to transportation ; and when
sentenced to transportation , may obtain
commutation to corporal punishment — while
remission of the latter may be procured on
payment of a fine (as in the case of an official).
Further, when sentenced to transportation, unless
the offence be in itself infamous, a graduate
may claim exemption from branding (H. A.
H. L. vol. XL p. 38).
Priests {v. Religion) do not receive any
consideration — on the contrary, they are
exceptionally severely treated.
SECTION IV — ACTS OF GRACE
ACTS OF GRACE
Whenever an Emperor celebrates his jubilee,
or his marriage, or the attainment of his
seventieth or eightieth year, or, in short,
whenever an excuse can be found, he publishes
an Act of Grace.
Acts of Grace are either ordinary or
extraordinary, and the effect differs in either
Il6 ACTS OF GRACIi
case. An extraordinary Act of Grace /^ "^k
extends to all save the very worst offenders,
and its effect is not only to cause the remission of
the punishment, but also to cause the entire
cancellation of the offence — thus a thief
pardoned under such an Act is dealt with as
for a first oft'ence if he offend again. An ordinary
Act of Grace ^ ^ and General Gaol Delivery
m ^ ,K ® '@» H extends to a more limited
class of offences, and only remits or commutes
the punishment : the stigma remains, and the
relapsed offender has his former offence considered
in his sentence (H. A. H. L. vol. XVII. p. 42) —
the penalty due to his present offence being
increased a degree (H. h. H. L. [U II).
The effect of an Act of Grace is, however, a
difficult subject, and it is well to speak under
correction, for not only does it appear that
high official after high official has failed to
master the mystery, but the rulings of the
Board, in dealing, not only with cases of
relapsed offenders, but with features affecting
these enactments generally, do not seem to
have been always consistent one with another.
ACTS OK GRACE I I 7
The Board, however, admits that Acts of Grace
and their interpretation proceed on no fixed
principle — they are extraordinary measures
administered to suit the circumstances of the
occasion M^^M^^ — J&Z-M (H.
A. H. L. vol. XVII. p. 59). As one judge
declares, the subject is full of peculiarity.
It may, at all events, be stated with tolerable
accuracy that, to give a striking example, an
ordinary offender considered worthy of death,
and so sentenced, may, under an extraordinary
Act of Grace, escape without a stigma and at
once, while, under ordinary Acts of Grace, such
an offender may reasonably hope that his
punishment will be reduced degree after degree,
until he finds himself a free man — though
with the stigma of his offence upon him.
Generally speaking, any Act of Grace will
extend to offenders at any period, before
trial, on trial, after conviction, on their way
to punishment {e. g. transportation), on and
after arrival there. When the offender is in
hiding at the time, he cannot plead the Act,
though he can if no charge has been laid.
I I 8 ACrS OK GRACE
and his criminality is subsequently discovered
(H. A. H. L. ^ II). Special provision is
also sometimes made that offenders of seventy
years of age or over, or who have behaved
well for three years since conviction, shall, unless
their offence come within the Ten Felonies ~f"
^, receive a free pardon.
It follows also, naturally, that where the
principal, sentenced capitally, receives a pardon,
the accessories, who have been sentenced to
penal servitude, shall also be released.
Where capital offences have been commuted
to transportation for life, an Act of Grace
allowing redemption of the latter penalty by
fine only applies to cases of long standing,
and the fine is to be the equivalent of the
penalty to which the offender was originally
sentenced.
The Ten Felonies are generally excepted
from the benefit of an Act of Grace, and, in
the early days of the dynasty at least, offences
against martial law and the harbouring of
deserters also. The various Acts, however, differ
in the offences covered by them. Thus, in that
ACTS OK GRACE II9
published on the accession of Chia Ch'ing, in
addition to the offences above mentioned,
forty-seven capital offences were, in effect,
excepted from the operation of the Act,
although but forty-three were specified therein.
As, therefore, the offences specified would not
complete the catalogue of crime, it was further
laid down in the Act, that unspecified offences
of similar nature should be dealt with under
one or other of the categories specified in the
list, and were to be considered as if originally
embraced within the meaning of such similar
and specified categories. The principle followed
in this Act is evident enough ; namely, that
ordinary offences, for which no special ground
for severity existed, should be excused ; that
the more serious offences, which it would be
dangerous to excuse, should be punished ; and
that the spirit of the Act might be followed,
and not its mere letter, provision wr-s made
that unenumerated offences might be dealt
with on their merits.
The following lists show what offences have
been excused under Acts of Grace, either on
Ol-l'ENClCS EXCl'SKU
the instant, or after the application of the
bamboo, and what offences have been excepted
from their operation.
Offences excused. —
Killing in an affray.
Killing in a planned affray — taking a principal pari therein.
Killing a bystander by accident in an affray.
Wounding severely in a planned affray wherein homicide occurs.
Killing in course of sport.
Killing deliberately : 1:)eing an accessory actually taking part
therein : provided the killing was not influenced by lucre or
malice, and did not occur in the course of rape or robbery.
Killing deliberately an immediate relation, if for cause, and not
for cruelty.
Killing an immediate relation : provided it be done in ignorance
of any existing relationship, and provided the case is capable of
being treated as between ordinary persons.
Killing a wife deliberately, if for cause and not for cruelty.
Beating and killing a wife.
Killing a wife and her paramour, and then fleeing.
Liability of a wife for the killing of her husband by her
paramour — she being ignorant thereof.
Killing an elder sister's husband by striking him.
Beating and killing a junior relation by marriage — the
junior being within the degrees of mourning.
Planning the delil;crate killing of a junior and causing his
death, if for cause and not for cruelty.
Beating and killing the wife of a distant junior relation.
Killing deliberately one's hired servant.
Killing the servant of a junior relation by striking him.
OFFENCES EXCUSED
Killing the slave of another — the slayer being a respectable
person.
Worrying a person to death.
Killing an offender who has been captured by the slayer and
has not resisted arrest.
Attempting rape, and thereby causing the victim to commit
suicide.
Oppressing the people, and thereby causing death — by civil
and military officers, presuming on their position.
Bringing a false accusation, and thereby causing the death of
the accused.
Smuggling in bodies of ten or more and resisting arrest :
provided the smugglers be unarmed and do no injury.
Robbery with violence, wherein wounds are inflicted, but homicide
does not occur.
Theft to a capital amount : provided there be no aggravating
circumstances.
Theft on third conviction for stealing an amount exceeding
Tls. 50.
The embezzlement by unsalaried persons of Government funds
to the amount of Tls. 120.
Obtaining Tls. 10 or more by means of a sham warrant — taking
a principal part therein.
Inveigling away young persons not being parties thereto.
Opening a cofKu to see that the corpse therein has not been
injured — • taking a principal part in the offence.
The opening of gambling houses by bannermen for ten days or
more, on third conviction.
The resisting his arrest by a thief, who has used cutting
instruments, but has not done fatal injury.
The escaping from their place of punishment and subsequent
commission of transportable offences by convicts.
OKKENCES KXCUSlil> Al'TKR liAMHUOING
Taking bribes from convicts to assist Ihcm to escape ; where
the amount is within Tls. 120.
Offcjices exaised after banibooing. — It is not
unusual to provide that, preliminary to release
under the Act, certain classes of offenders shall
-undergo a slight treatment of the bamboo.
Thus, it has been provided that women who
plan the death of their paramours, repenting
of their sin and desiring to break it off, are,
preliminary to release, to be treated with twenty
blows of the heavy bamboo : and similarly
with slaves who beat, and thereby cause the
death of, respectable persons ; and so with
those of tender years who beat, and thereby
cause the death of, their cousins within the
degrees of mourning; and so with offenders
who with excuse resist arrest, and kill the
person seizing them. In a well-known Act of
Grace, dated the twelfth day of the ninth month
of the twenty-fifth year of Chia Ch'ing, like
provision was made for the following offences:
Striking a senior, and killing him therel)y.
OfTenccs of such a class as that comnuttcd by a son or grandson,
OFFENCES EXCUSED AFTER BAMBOOING 1 23
who, by his immoral practices, causes his parents to commit suicide,
and is not sentenced to immediate death.
Responsibility attaching to a naughty wife whose paramour
kills her husband — she being neither privy to the matter, nor
hushing it up.
The terrorising, beating, and killing of the people by civil and
military oflicials.
Abuse of authority, and thereby causing a person to commit
suicide.
Bringing a false accusation of theft, and causing loss of life
thereby.
Bringing a false accusation, and thereby causing the death of
the accused.
Resisting arrest and killing the would-be captors, under mitigating
circumstances.
The resisting his arrest by a dissolute person, who also wounds
his would-be captors.
Piracy on river or land, there being mitigating circumstances,
and the pirates delivering themselves up to justice of their own
motion, or knowing that warrants are out for their arrest.
Robbery and murder by accomplices who have taken part in
the violence offered.
Robbery, using sharp instruments at the time.
Robbery of the first class, or theft by servants or others to the
amount of Tls. 500 or over.
Theft, using sharp instruments at the time, and with them
resisting arrest, and wounding the would-be captors.
Being an accomplice in an unsuccessful swindling case.
Attempted rape, aggravated by wounding the victim with sharp
instruments.
Being an accomplice of some illegal organisation, such as the Red
Whiskered sect, and thereby becoming liable to capital punishment.
124 OFFENCES EXCEl'TEI*
Destruction of another's grave, opening the coffin, and exposing
the corpse, but not doing the latter any injury.
Offences excepted. — Many offences, both
capital and transportable, have been excepted
from the operation of Acts of Grace.
Plotting rebellion.
Responsibility of relatives for the actual rebellion of their
kindred.
Responsibility of a convict for the treason of a relation.
Deserting from the army in time of war, and committing offences.
Conduct affecting military operations, or acting as a spy on the
frontier.
Keeping back military intelligence, if injury be done thereby.
The losing of their posts by frontier commanders.
Entering into relations with foreigners, and cheating them.
Striking an official, Ijy a bannerman or cutploye — where the
offence be treated as transportable.
Insulting and injuring a superior officer, by a bannerman or
employe — where the offence be treated as transportable.
Actual embezzlement of Government funds by salaried officials,
but not by a private individual sentenced under the statute hereon.
Embezzlement of Government funds by a salaried official to the
amount of Tls. 80 or more.
\'oluntarily joining an illegal and detestable sect, and committing
an offence punishable with military servitude.
Responsibility of relations in the case of the above offence.
Affiliation in an illegal society or brotherhood.
The bringing of false capital charges by the police.
Forging official documents charging individuals with crimes.
OFFENCES EXCEPTED 12$
Designed aggravation or mitigation of indictments by magistrate's
clerks.
Outrageously entering a public Court, and insulting a magistrate,
or mobbing an official — where the offence is aggravated by
violence or special gravity.
Outrageously inciting suitors to contempt of Court — but not
if guilty in one instance only, though tried under the statute hereon.
Ruffianism.
Propagating false reports to the disturbance of the public peace.
Inciting a breach of the law, leading to an offender being
sentenced to death, or otherwise causing loss of life.
Continually causing turmoil and rowdy disturbances — in the
case of tliose who, persisting in their evil ways, are a source of
danger to the public weal, and cause loss of life.
Taking advantage of the position of servant to an ofiicial, and
causing disturbance in the postal service.
Collecting in force to rescue prisoners, if the police be wounded.
Outrageously setting fire, for lucre, to public or private buildings,
treasuries, or granaries.
Outrageously setting fire to any building, whether for revenge
or lucre, and whether the fire be put out at once or spread to
adjacent buildings, if the offence be treated as transportable, and
though robbery has not been committed.
Poisoning.
Parricide.
Killing three of a family.
Causing the death of anyone with a view to personal gain, or ■
killing generally.
Killing with intent.
Killing a bystander by accident, intending to kill someone else.
Planning murder — the principal thereto : and the accessory
also, if interested therein.
126 OFFENCES EXCEPTED
The beating and killing of senior relations by an unruly junior.
Neglecting the support of parents, and causing their death or
suicide thereby.
Complicity in robbery or immorality, and causing a parent's
death or suicide thereby.
Beating to death or killing with a sharp instrument an immediate
senior relation, though on the spur of the moment, and consequent
on the misbehaviour of the SMAvtXniVwn f)-ccoiiiiiic/idcd /ly tlic Bonr(/
for exemption^ but by Imperial Decree added to the exeeptio/isj.
Worrying to death a near and senior relation.
Without murderous intent wounding and causing the death of
an elder brother (recommeiided by the Board for exemption^ hut
by Imperial Decree added to the exceptiotisj.
The killing, at his mother's command, of an elder brother of a
former wife (who has since remarried) of the slayer's late
father (id. J.
Planning the deliberate killing of her husband by an adulterous
wife.
Agreement of a wife to deliberately kill her husband at the
instigation of her paramour.
Concealment by a guilty wife of the deliberate killing of her
husband by her paramour.
Intentionally killing a wife, without good cause and out of
cruelty.
Intentionally killing a younger brother or cousin, without good
cause and out of cruelty.
Deliberately planning the death of a junior — the case being
treated as intentional killing without good cause and out of
cruelty.
Leading a daughter-in-law into impropriety, and thereby causing
her to commit suicide.
The deliberate killing by a slave of his lord.
OFFENCES EXCEPTED I27
Responsibility of a relation of a slave or hired servant for the
premeditated killing by the latter of the master.
ResponsiV)irity of a convict for deliberate killing committed liy
a relation, or for premeditated killing committed by a relation,
whereby three of the aforesaid convict's near relations lose
their lives.
Deliberate killing, consequent on immorality or robbei'y, by an
accessory taking actual part therein.
Attempting to rape a widow, and therel:)y causing her to
commit suicide.
Abduction or forcilile marriage of a widow or woman living
Ijy herself, thereby causing such widow or sole woman to commit
suicide : provided the offence be treated as transportable.
Raping a girl under twelve years of age, and thereby causing
her death.
Illegal employment of torture, causing death thereby.
Bringing a false accusation against persons under torture, and
thereby causing the death of one or more.
Beating and killing prisoners by anyone in prison.
Killing a person resisting sale.
Witchcraft, with fatal results thereby.
Resisting arrest, fatal results following thereon, and the
circumstances being grave.
Theft and resisting arrest, fatal results following thereon —
taking a principal part therein.
Robbery with violence, whether originally premeditated or not.
Robbery causing the death of the person robbed — taking a
principal part therein.
Theft to a considerable extent, coupled with violent resistance
to arrest.
Persistent theft.
Raping the wife of a senior relation.
128 OFFENCES EXCEPTED
Raping a relative of or within the fouith degree.
Attempting to rape a daughter-in-law.
Defiling a sister-in-law.
Defiling an aunt within the degrees of mourning.
Defiling half-sisters by the same mother.
The defiling by a slave of his master's concubine.
Seduction and sale of the relations of his lord by a slave or a
hired servant.
Kidnapping and rape of respectable children — taking a principal
part therein.
Kidnapping respectable women, and marrying them by foixe.
Using spells or drugs to kidnap children.
Pretending to act as a broker, buying women, and living on
the proceeds of their forced prostitution — if of long continuance,
and treated as a case deserving military servitude.
Reduction to impotency by immoral practices — taking a
principal part therein.
Beating and wounding a near and senior relation.
The wounding with sharp instruments of a near and senior
relation by an unruly junior.
The beating of her husband or master by a wife or concubine
respectively.
The beating of her master's wife by a conculnne.
The assaulting by slaves of their lords.
Salt smuggling in bands of ten or more, where the smugglers
are anned and resist arrest.
The bringing of a false accusation of a junior against a senior,
or by slaves and hired men against their lords.
The bringing of a false accusation by a servant against his master.
Conviction for an offence at the request of a parent or grand-
parent, the latter Ijeing unwilling to receive back their offending
relation.
BRANDING AND ACTS OF GRACE 1 29
Hushing up for money the deliberate killing of a parent or
grandparent.
In conclusion of this subject, it is desirable
to mention certain points of general and special
application in regard of branding and the effect
thereon of Acts of Grace.
The general rule, as regards capital penalties,
is that an offender obtaining commutation thereof
under Act of Grace is to be branded (H. A.
H. L. vol. XVII. p. 53). Sundry points arise,
however, as well in respect of other penalties,
as in respect of capital penalties, on the question
whether or not an offender shall be branded.
And first it is of great importance in this
connection to determine the question of time.
When was the offence committed — before
or after the issue of an Act of Grace? When
was the case tried ? When was the offence
discovered ? So of larceny ; if theft is committed
before the issue of an Act of Grace, though the
case did not come before the Court until after
such issue, the offender is to be branded : if
the thief be an old offender, but the case was
tried before the issue of an Act of Grace,
130 BRANDIXG AND ACTS OF GRACE
the former brands are to be obliterated only
if the offence be specified in the Act as excused
— otherwise the former brands are to be
renewed. If, after the issue of an Act of Grace,
an offender sentenced to a life penalty escapes,
and incurs thereby the sentence of three year's
transportation, the brands are to be obliterated
(and the offence of escaping excused) : but it
such offender commit the offence of escape
before the issue of an Act of Grace, though
excused his escape, his brand is to be renewed.
Again, if such offender commit one act of robbery
before, and a second after, the issue of an
Act of Grace, both cases coming to light at
the same time, they are both to be taken
into consideration, and, in the event of subsequent
conviction, both cases are to be counted as
previous offences — and the offender will be
so branded. Moreover, if such an offender has
taken upon himself to obliterate his branding,
or has resisted arrest, and has thereby incurred
the aggravated penalty of transportation for
a term or for life, the former brand is to be
renewed.
BRANDING AND ACTS OF GRACE I3I
It seems hard in some of these instances to
discover any sequence of reasoning, but what
has been already stated must be well borne in
mind — Acts of Grace and their interpretation
proceed on no fixed system, and are the servants
of circumstances.
CHAPTER IV
THE POSITION AND LIABILITIES OF
SUNDRY OFFICIALS EMPLOYED
IN THE ADMINISTRATION
OF JUSTICE
magistrates' duties etc. POLICE ETC. TiPAOS
PRIVATE SALT WATCHERS
MAGISTRATES' DUTIES — OFFICIAL CARELESSNESS
Magistrates are under liability to receive and
act on informations or complaints regularly
presented or made, subject to penalties varying
with the nature of the charge, and the effects,
if any, of their neglect. So, if an information
touching high treason be regularly presented,
and the magistrate does not take the proper
measures in regard therewith, if riotous results
follow, the magistrate will be decapitated, and
magistrates' duties OFFICIAL CARELESSNESS 1 33
if no results follow, he will receive lOo blows
and transportation for three years. So, again,
if a magistrate refuses to receive a regularly
preferred charge touching parricide, he becomes
liable to lOO blows, and for such neglect in
the case of ordinary homicide or robbery, a
liability to eighty blows is incurred.
If a magistrate allows an offender to escape
the penalty due his offence, or if he convict
him of a graver offence than that of which
he is really guilty, and he does so wittingly,
he is liable to the full penalty which, in the
one case, he ought to have exacted, or which,
in the other, he has wrongfully imposed. If
the mag-istrate committed his error in ignorance,
the sentence, in either instance, is commuted
five degrees ; while, in the former of the two
instances given, if he can regain the criminal,
an additional commutation of one degree is
allowed (H. A. H. L. vol. LX. p. 4). Further,
in regard of an error committed in ignorance,
where the magistrate has subsequently discovered
and rectified the same to the best of his
ability , he will be pardoned , although
134 magistrates' duties — official carelessness
the sentence has been executed, in the case of
too lenient a sentence, and will receive a
mitigation of three degrees in such case, in respect
of too grave a sentence.
Carelessness which in England would subject
an official to a civil action for damages, in China
is considered as a criminal offence. A well-known
instance is that wherein a man was left in prison
for years, because the clerks omitted his name
in copying the instructions regarding him (H. A.
H. L. vol. LIX. p. 7). The remedy is however
somewhat dangerous, and it is on points such
as this , that the Chinese system contrasts
disadvantageously with our own : cf. the position
of a criminal in England before the invention of
the Habeas Corpus Writ.
Magistrates are also naturally liable for the
imprisonment of persons not implicated in an
offence, that is, if the false imprisonment be with
design, and out of private feeling : and so also,
but in less degree, where persons summoned to
give evidence are so imprisoned — though the
imprisonment be inadvertent.
A magistrate is, furthcrmcjre, responsible for the
POLICE ETC. 135
safe keeping of imprisoned offenders, their wearing
fetters and handcuffs etc., and their general
treatment — be it milder, or more severe, than
the law prescribes. The penalties vary with the
particular nature of the offence itself, and the
offence of the offender so treated — ranging
from thirty blows upwards.
A magistrate who warns a prisoner to escape
will be held to have a warrant for his arrest
(H. A. H. L. Supp. vol. XIV. p. 51).
Definition. An official in charge of a criminal
is styled ^ g , and pending conveyance to a
magistrate ^^ t¥ (H A. ^E > incurs special liabilities
thereby.
POLICE ETC. TIP AGS PRIVATE SALT WATCHERS
Police etc. — The system provides that constables
^^ ^ shall be held responsible for the detection
and arrest ^ ^ of criminals , and shall be
periodically beaten if they fail to produce offenders.
Where a magistrate has issued a warrant for
the arrest of a certain offender or offenders, a
definite period — under the old law, in general
136 POLICE ETC.
thirty days, but, in the case of larceny varying —
is prescribed, within which the offender or offenders
must be produced. Where the offenders are several,
the production of one-half of them, or of a lesser
number, if the most guilty be included therein,
will be held sufficient. If the period be exceeded,
the police-officer will incur a penalty one degree
less heavy than that due the offender, or the
most guilty of the offenders, if there be more
than one. It may be herein added that an officer,
not being a regular police-officer, but detached
from his ordinary duties to perform police functions,
will, in the case of these offences, receive a penalty
less by one degree than that attaching to a
regular police officer.
This system of responsibility for detection of
crime and arrest leads ever and aorain to constables
putting pressure on other offenders, or, it may be,
innocent persons, to confess to offences of which
they are innocent. Where, on trial, this is discovered
to be the case, if the person tortured by the
constable confessed himself ^. ^. a thief, and be
really innocent of all offence, the constable will
be sentenced to military servitude ; if the said
POLICE ETC. 137
person be a thief, though innocent of the offence
in question, the constable will be sentenced to
three years' transportation (H. A. H. L. vol.
XLVIII. p. 28).
If a constable arrests the wrong person, and
thereby causes the latter's death, he will be
held capitally liable ; and even where there appears
to be no reason to doubt that he acted honestly,
and the person dies of disease caught in prison,
he will be sentenced to transportation for life
(H. A. H. L. vol. XLVIII. p. 29).
It is bad for a constable to let an offender go
Ei J® S^ ^^ ■> but worse for him to equivocate
about it t^ $E S ^ , for thereby he will entail
upon himself the penalty for slander (H. A. H.
L. Supp. vol. XIV. p. 51).
It will go equally hard with a constable who
allows the escape of an offender he has in custody,
or who gives the word to one for whom he
holds a warrant (id.).
A constable who takes a bribe ^ ^^ to let
an offender go, will incur the penalty due the
latter. This refers to solitary instances of neglect of
duty •, if the constable received bribes regularly
138 POLICE ETC.
(being, as it were, in the pay of offenders), he
will be dealt with under another clause —
"constables who maintain and harbour thieves,
"etc." — and sent to military servitude in the
swamps {id.).
In regard of a constable's right of offence or
defence his powers are strictly limited. A constable
duly armed with a warrant and in self-defence is,
however, practically justified in killing an offender
who resists him, provided the killing be unintentional
and in the act of arrest. A sentence of 1 00 blows
will, however, be imposed.
It is decapitation without appeal for an offender
to kill a constable armed with a warrant for his
arrest, whether or not the killing be intentional ;
but the constable must either have a warrant,
or be authorised to arrest the offender. If the
person so killing be not the actual offender, but
merely involved in the case, the capital sentence
is subject to revision (H. A. H. L. vol. LV.
P- 13)-
Ordinarily the above penalty is increased two
degrees, if the offender has resisted arrest and
hurt an officer (H. A. H. L. vol. LV. p. 15).
PRIVATE DETECTIVES — TIPAOS — PRIVATE SALT WATCHERS 1 39
It is Strangulation subject to revision if the injury
done the person arresting an offender amounts
to breaking a bone (H. A. H. L. vol. LV. p.
26, V. also Excusable Homicide).
Private detectives ^ ^ have, apparently, to be
selected, registered, and provided with a ticket,
much in the same manner as private salt watchers
(infra) -.^ and when these conditions are complied
with, the protection accorded an ordinary constable
is conferred.
Tipaos. — Tipaos and ward elders have authority
to arrest offenders and hand them over to the
constituted authorities for trial and punishment;
but they cannot claim the benefit of the clauses
under which a constable, armed with a warrant
and in self-defence, is justified in killing an offender
who resists him.
Private Salt Watchers. — Private Salt Watchers
are protected in the same way as constables, if
approved by the local authorities under whose
jurisdiction they are placed, and registered at the
Judiciary Board. They must be carefully selected,
registered, and provided with a waist ticket by
the magistrate, or they will be treated as if they
140 PRIVATE SALT WATCHERS
had no statits whatever (H, A. H. L. vol. X.
pp. 10, II, 12). Though, however, they may
have no proper authority to arrest a smuggler,
yet, if they shoot a mere thief, some consideration
will, it appears, be shown {zk case of Chiang Li
^;|f , H. A. H. L. vol. X. p. 20). As regards
the carrying of firearms, they are allowed to do
so at sundry and special times, subject to the
proviso that they are not to use them, unless
resisted by large bodies of armed smugglers, and
with restriction to arms specially issued to them
and registered (H. A. H. L. vol. X. p. 29 —
V. case of Chiang Li siipra).
PART II
RELATIONSHIP
CHAPTER V
RELATIONSHIP
PREFATORY
The subject of relationship, dealt with but shortly
herein, offers one of the widest and most interesting
fields of research in Chinese Law: China is a
country of relationships, whether natural or artificial,
and not a few anomalies are traceable to this
source. The modes of formation and of dissolution
of relationships are sufficiently curious, but the
effects of ties are stranger still. Of these points
in their order, premising that the subject is not
easy of concentration, and will, independently
of this chapter , be dealt with as occasion
arises under the head of various offences and
considerations.
144 NATURAL RELATIONSHIPS THE RELATIONS OF A CHINESE
SECTION I — NATURAL RELATIONSHIPS — the relations
OF A CHINESE GENERAL INFLUENCE
NA TURAL RELA TION SHIPS
THE RELATIONS OF A CHINESE
A Chinese has many relations — far more than
the average Englishman. So of mothers, a Chinese
has not one only but several. Firstly, there is his
own mother — not the mother who bore him, but
his father's chief wife: then, there are his other
mothers — his father's other wives: then, there
is the mother who bore him: then, the mother
who has brought him up : then, the stepmother,
if the wife dies and his father supplies her place :
then, the wife of the relative to whom he has
been assigned as heir: then, the mother-in-law:
and so forth. If, then, the consideration merely of
mothers is somewhat perplexing, the difficulty of
comprehending the more distant relationships will
be seen.
Mourning is worn for four degrees of relations ;
the kind of mourning, and time for which it is
worn, varying with the relationship ; and, in law,
THE RELATIONS OF A CHINESE I45
relationships more remote in degree than the above
are not, in general, taken into consideration.
Relations of the first degree include parents and
grand-parents, styled the 'nearer relations' in this
degree ; and also other relationships of the first
decree more remote, than the nearer relations.
Relationship of the first degree is thus of two
grades, but inasmuch as the latter grade mentioned
is in reality another degree of relationship, it is
so considered as occasion arises in this book,
and styled the second degree of relationship.
Relationships of the first two degrees (drawing
the above distinction) comprise twenty-four in
number, of the third fourteen in number, of the
fourth twenty-one, and of the fifth forty-two.
This brief sketch indicates the complexity of the
subject. In dealing with uncles, cousins, and more
distant relationships tables are essential, and with
the tables, close attention to see where and how
the relationship comes in. But the difficulty is
one to be grappled with, for on the relation in
which one person stands to another depends the
nature of the action.
146 GENERAL INFLUENCE OK THE CONSIDERATION
GENERAL INFLUENCE OF THE CONSIDERATION
"But it is a case in which relationship is
"concerned," is a common phrase in reports of
the Chinese Courts, and the judges, instead of
dismissing an offender with summary chastisement,
will accordingly sentence him to, very possibly,
immediate decapitation. So, to kill a person may,
by virtue of relationship, be, in effect, no offence
whatever ; while to hit a person accidentally may,
under the same consideration, be the most heinous
of offences. An injury done by a senior to a
junior relation is, indeed, generally punished in
some measure — but the penalty bears no relation
to the injury. The influence is one which makes
itself felt throuofhout all the ramifications of
relationship : its presence is naturally most manifest
in the relation of parent and child or of husband
and wife, but it is also most plainly to be discerned
in the near relationships other than these. Thus,
if an uncle or aunt beat their nephews or nieces
to death, the penalty is but one hundred blows
and three years' transportation : if they kill them
intentionally, it is only one hundred blows and
GENERAL INFLUENCE OF THE CONSIDERATION 1 47
transportation for life to 2,000 // distance: and,
in respect of the latter instance, if the act is
done with the intention of bringing- other people
into trouble, they are still merely punished with
military transportation. If a case be aggravated
by the unnatural relations being influenced by
designs on the virtue or property of the nephew
or niece murdered, or by an old hatred of them,
the penalty will still only be strangulation subject
to revision: and though it is true a decree of
Ch'ien Lung provides that, where the case is a
particularly bad one, the aforesaid senior relations
may be sentenced to capital punishment, even
where the above-mentioned special elements of
aggravation are absent, yet it is also laid down
in the decree that the sentence shall not be
carried out. If the junior has been guilty of grave
offences rendering him capitally liable, it is a
fortiori a. case in which his incensed seniors may
put him to death — still subject, however, to a
penalty, though trifling : and so also with a junior
who is a bad character and is bringing discredit on
the family.
The privilege of cutting short a junior's existence
148 GENERAL INIH.UENCE OF THE CONSIDERATION
is not, however, extended to the more distant
relatives — not even to the head of the
clan, though in minor matters his power over a
junior would not be questioned. Still, however,
allowances will be made, and his position taken '
into consideration in the sentence.
On the other hand, as regards his juniors, a
senior is sacred, and thoug-h actingr under orders
or assisting his seniors to correct him, the juniors
will be sentenced capitally if they kill him, and
the utmost grrace shown them will be that
execution may be deferred and subsequently
commuted. Nor must a junior, though in a painful
position, endeavour to extricate himself therefrom
by forcible remonstrance with his aggressive
senior — even if he does the latter but very
slight injury thereby. So in the case of Ch'ang
Ting-yii § ^\i "H , the offender therein, objecting
to having his head knocked against a wall by
his uncle, made a dig at the latter with a knife
he held in his hand. The uncle was slightly
wounded, but speedily made a complete recovery.
The offending nephew was sentenced to immediate
execution, and, as a measure of grace only, the
GENERAL INFLUENCE OV THE CONSIDERATION I49
Board allowed commutation to execution subject
to consideration at the Autumn Assize. It is death
for a person to draw a knife on his senior in
the first degree, whether he let blood or not;
nor will the plea that a junior killed a senior in
defence of his father be of o-reat weight — the
sentence being transportation.
It is in general an offence for a junior to bring
a charge against his senior blood relations, even
although the charge be true, and the penalty
incurred thereby will be one hundred blows and
transportation for a term (H. A. H. L. vol. XL VIII.
p. 86). If the charge be only partially true or
wholly false, the junior will incur strangulation.
But the gravity of the offence varies much with
the nature of the charge, and especially with the
nearness of the relationship. In the case cited, the
senior relations included were the parents, paternal
grandparents, a husband, a husband's parents
or grandparents. Charges brought against more
distant relations are far more leniently treated: so
a charge brought by a son against maternal
grandparents, if true, involves but i oo blows : and
a charore against an elder relation in the second
O O
150 GENERAL INFLUENCE OF THE CONSIDERATION
degree, if true, involves ninety blows only. Certain
heinous offences are excepted from the operation
of this law, e.g., treason, rebellion, compounding
of serious offences against the State etc. etc.
However remote the relationship of the parties
^ jS. ^ ® 1 even though it be so distant that
on death no mourning would be worn by the
one for the other ^ IS ^ flS || ^^ , it is
invariably considered in cases of strife ; and where
the person injured is a senior the punishment of
the offender is to be increased one degree, so
far that it does not bring the penalty up to
capital punishment. But there must be a palpable
relationship of some kind, and mere connections
S. ill , however intimate ^ ^ JJk ^ ^ ^ »
are not considered relations within the meanino-
of the provision hereon.
Offences against relations are the more
serious the nearer the relationship ; but there is
one offence, theft from a relation, in which the
reverse is the case — thus, theft from a father
is not dealt with so seriously as theft from a
more distant relation or an outsider. Yet here
also the penalties for theft by a senior from a
GENERAL INFLUENCE OF THE CONSIDERATION 1 5 I
junior are less severe than for theft by a junior
from a senior (see later — Larceny).
Where the person who commits an offence
apfainst another was ignorant of the existence of
any relationship, he will not incur the aggravated
penalty: on the other hand, a person ignorant of
the existence of any relationship may subsequently
claim any benefit it may confer — v. case of
P'eng Chih-ming %^^ (P. A. S. P. vol.
XV. p. 8).
There is also another subject into which the
question of relationship enters, of which it is
desirable to make note here — i. e. the liability
of relations for offences committed by one of
their body. The liability may obviously arise in
several ways, but is in general distinguished by
a characteristic peculiarity — its origin, not from
active instigation, but from the passive condition
of relationship. A senior relation is usually liable
for a junior's offence (subject of course to such
considerations as age, etc.), though the penalty
will generally not be heavy. A senior is under
no obligation to condone an offence which has
not yet come to light, as is the case with a junior
152 GENERAL INFLUENCE OF THE CONSIDERATION
(infra) — and if he does so, that is his affair.
The question as to a senior's knowledge of the
commission of an offence is immaterial. Thus a
son commits an offence, and whether or not the
father has knowledge of it, he will be liable. So
a father was sentenced to one hundred blows,
because his son (unknown to the parent) had
abducted a young woman (H. A. H. L. vol. IX.
p. 7). A junior relation is also usually liable for
his senior's offence, and more heavily so than a
senior is for a junior. A junior is also in a more
difficult position, and his liabilit)^' may be of a
double nature — he has not the freedom of a senior,
and so his duty is in general to condone the
offence, if it has not yet come to light ; and if
it has, he may or may not be liable, according as
such questions as the nature of the offence, of sole
representative, of age, etc., etc., are of weight.
Treason is the only offence a relative has no right
to condone, and even here a junior must be able to
prove the charge, or he must pay the penalty :
and juniors and wives must suffer punishment for
the actual treason of a senior or a husband.
In certain cases the relatives of offenders are
PARENT AND CHILD 1 53
declared incapable of attending the examinations ;
but this is extra-legal rigour — a measure adopted
to meet the exigencies of a particular case
iim^%^mmm)&Pi (h. a. h. l. voi.
XI. p. 36).
SECTION II TARENT AND CHILD
PARENT AND CHILD
Parents, grandparents, and those who stand in
loco parentis^ are, as respects their children, in the
same position ; and it is the same offence to be
un filial to the person who stands in loco parentis,
as it is to be so to the true parents (H. A. H. L.
Supp. vol. XI. p. 67).
Parents etc., have the power of sending their
children to Botany Bay; and the power seems to
be exercised on very slight grounds — as in the
case of Shen Ching-ch'iian '^ ^^ "^ , who had
borrowed money and spent it (H. A. H. L. Supp.
vol. I. p. I 3) ; or in the case of the brothers Yang
^5 who had disobeyed their father on one
154 PARENT AND CHILD
occasion only (H. A. H. L. Supp. vol. I. p. 14).
If parents bring their children before the Courts,
the magistrates are instructed to sentence them
to transportation on the plantations, without going
further into the case. The parents are the best
judges, and treating their children leniently may
lead to serious results. The only exception to
the rule is where a widow brings up her husband's
son by another wife, and, in this case, the
circumstances are to be inquired into (z'. case
of Sun Mou # ^ (P. A. S. P. vol. XXVIII.
p. 10).
If their children are disobedient, parents have
the power of handing them over to the Court
M ^ 1 with the request that they may be
transported to the plantations. Thus, in the case
of Ch'eng Pang-kuei S ^P ^ i a man and his
wife were transported for life for disobedience to
their parents, and answering back when rebuked
(H. A. H. L. vol. XLIX. p. 51). Running away
from home for two years, has also been considered
sufficient ground for such treatment (H. A. H. L.
vol. XLIX. p. 54) ; and likewi.se the pawning of
a mother's clothes to pay gambling debts (H.
PARENT AND CHILD 1 55
A. H. L. vol. XLIX. p. 55). But the Reports
are, in fact, full of such cases.
Under ordinary circumstances, some considerable
mitiofation is allowed a son so sentenced. Thus
he is allowed to benefit under an Act of Grace,
and to commute his term for one month's cang-ue.
Again, if the parents die during the son's term
of punishment, he will be allowed to return and
bury them — provided the offence be but a solitary
instance of disobedience fp| |^ %% ^^ , and the
son has behaved himself properly in confinement.
If the son be a ne'er-do-well f'§ ^ ^ ^|^ » and
has been brought before the authorities on
another or other occasions, no mitigation of his
sentence will be allowed. Thus, there is a case
where a son was transported for leading a fast
life and being disobedient. Released subsequently
by Proclamation, he ventured to get drunk, and
was for this again sent to transportation for life,
and refused the benefit of any future Act of
Grace.
As regards personal correction, though parents
have ample powers, their actions must be reasonable.
It is supposed to be improper to correct a disobedient
156 PARENT AND CHILD
son unreasonably. Thus if a father beats his
disobedient son to death, he will be liable therefor
to one hundred blows : or if he kills his son
without just cause, he will be liable to sixty
blows and one year's transportation. But if the
killing- be consequent on the son's abusing or
striking his justly angry parents, no notice will
be taken of the affair (H. A. H. L. vol. XLIV.
p. i). The plea of provocation is made full use
of So a grandfather, who buried his son alive,
was let off because the boy abused him {id.) :
and it is quite permissible for a father to strangle
his daughter, if she misbehaves (H. A. H. L. vol.
XLIV. p. 2). A father who strangled his son
for stealing watermelons now and then did not,
however, escape so easily — he received one
hundred blows (H. A. H. L. vol. XLIV. p. 4).
Not only may the parent himself stiffly correct
an abusive and disobedient son, but another
person may do so at the parent's request, and
if the deputy kills the son, he will only be
liable to receive ninety blows — as in the case
of Chang I-kao ^ ^ m , who, at the request
of the father, beat the son to death, for objecting
PARENT AND CHILD I57
to being given up to justice and using abusive
language (H. A. H. L. vSupp. vol. XII. p. 3).
It has been stated [siiprd) that a parent who
kills a child without just cause will receive some
slight punishment ; a fortiori in the case of a
parent who kills a child merely from motives of
temper or cruelty — yet, such is the tie of
relationship, that here also the penalty is out of
all proportion to the offence. So in the very
bad case of M^'^ Wang nee Li ^ ^ ^ , wherein
a mother murdered her son, because he interfered
with her improper tastes. Admittedly the woman
was undeserving of consideration; but her son's
feelings must be respected, though he was in
the spirit world ; and as it was clear that he
would not wish his mother to be hanged, she
was merely given to the Tartars as a slave
(P. A. S. P. vol. XXV. p. 22) — of. the case
of a mother-in-law under similar circumstances,
who, if she murders her daughter-in-law, may
be held capitally liable.
A parent may, apparently, for good cause
shown, sell a child of tender years \ but not
apparently for lust of gain. Such cases are to be
(^
158 PARENT ANU CHILD
judged according to their merits. The power
however exists, and is exercised {v. also Master
and Slave). This power does not extend to those
who stand merely in loco parentis.^ and selling
by such a person will be treated as kidnapping
in the 2^^^^ degree (H. A. H. L. vol. XX. p. 22):
and a fortiori the power does not extend
merely to those who have charge of a child,
under penalty of the heaviest form of military
servitude. It makes a difference if the child is
over ten.
A person who causes his parents death, directly
or indirectly, intentionally or accidentally, is liable
to capital punishment, generally of the more severe
kinds — and, if the act be intentional, to the
extreme penalty of the law. From its indirect
aspect, the subject is closely connected with the
curious position of responsibility {q. v) ; but, on
the consideration of its direct aspect, a few words
may be offered.
The position of an offender who directly, and
intentionally, kills his parents, is obvious — the
penalty being the lingering death.
The position of an offender who directly, though
PARENT AND CHILD
159
accidentally, causes his parents death, is not so
clear. By the old law, a woman, who was the
accidental agent of her parents' death, was sentenced
to strangulation subject to the presentation of a
confidential report to the Board ^ with the result
of commutation to transportation redeemable by
fine : a man, on the other hand, and under the
same circumstances, would be actually transported.
Later legislation, therefore, provided that the sentence
of death should not be commuted as a matter of
course, but should be considered at the Autumnal
Revision, and dealt with as circumstances required
(H. A. H. L. vol. XLIV. p. 19). An inspection
of the cases on the subject shows, however,
that, in practice, accidentally causing the death of
a parent is invariably treated much more severely.
Thus, in the case of T'an Ya-chiu g^ 5^ Jh ,
wherein it appeared that a man had been struggling
with the offender's mother, and the offender,
throwing a stone to make the man unloose his
hold, by accident hit his mother and killed her.
The offender was thereon sentenced to the
lingering death, subsequently commuted by special
degree to decapitation subject to His Majesty's
l6o PARENT AND CHILD
pleasure (H. A. H. L. Supp. vol. XI. p. 6i).
And in another similar case, a son was so
sentenced for killing his father accidentally, in
cutting at a man who was throttling his parent.
{id.). In another instance, a lunatic was beating
his father, and his brother in trying to separate
the pair, accidentally knocked his father on the
head and killed him : for this, the lunatic was
sentenced to lingering death, and the brother to
decapitation subject to His Majesty's pleasure [v.
case of Chang Ch'u-lao 5R ?5^ ^ (H. A. H.
L. Supp. vol. XI. p. 62). It must be noted,
as has been already stated {v. Limacy), that
lunacy is no defence. Then there is the case
of Li Yung-ch'ing ^ ^^ ^ , sentenced to instant
decapitation, as a mitigated penalty, for shooting
his father in mistake for a midnight robber
(H. A. H. L. Supp. vol. XI. p. 58) : and the case
of Sun I -^ ^, who catching his footman in
his wife's chamber, in a fit of righteous wrath
iife ^ ^ r§t — as the Board says — lunged at
him with his sword, and accidentally struck and
killed his mother, who had popped out from
behind him. Takincr all the circumstances into
PARENT AND CHILD l6l
consideration, as an act of special grace, His
Majesty commuted the sentence of lingering death
to immediate decapitation {id.). Even where the
death is the result of causes clearly and completely
beyond the control of the son, yet the capital
sentence must be recorded. So, in the case of
M'"^ Fang 7iee Yiian JJ ^ ^^ the mother's
death resulted from her clutching- her daucrhter
by her dress behind — with the effect that the
latter stumbled back upon her mother and knocked
her down (H. A. H. L. vol. XLIV. p. i8);
and, in the case of T'ang Ming )^ ^ , a son
had scalded himself with some boiling water,
and his mother running up to see what was
the matter, slipped upon some of the water,
stumbled, and killed herself (H. A. H. L. vol.
XLIV. p. 22): and, in the case of Chou San-erh
J3 ^ J"?. 1 the death was the effect of a chill,
and had no connection with a blow that the
offender had struck his mother (H. A. H. L.
vol. XLIV. p. 23). The subject is one which
offers its fair quota of curious — if not inconsistent
— cases. Thus cf. the cases of Li T'ing-chen
^ /g # and Li Hung-ku ^%L^i ; in the
l62 I'ARENT AND CHILD
former of which a son killed his father striking
at a supposed thief, and was merely bambooed
and transported : in the latter, a son, struggling
with a supposed thief, fell back and knocked
his mother down and killed her, and for this
was strangled (H. A. H. L. vol. XXVI. pp,
12—13).
A person who merely strikes his parents, without
causing death, is liable to capital punishment —
generally strangulation , sometimes decapitation
subject to revision. So, in the case of Su Ch'ao-tzu
'^^ ^ ]^ , a lunatic was sentenced to decapitation
subject to revision for wounding his father in
a fit of madness (H. A. H. L. Supp. vol. XI.
P- 59)-
A person who causes his parents to sustain
corporal injury directly or indirectly is also liable
to capital punishment — generally subject to
revision, though sometimes not. So, in the case
of Jung Ta-ch'uang ^ ^Ac jfi , a lunatic throwing
tiles off the roof of a house, accidentally hurt his
father, who had rushed out to see what was the
matter. The father recovered, but nevertheless
th(> lunatic was sentenced to decapitation — the
PARENT AND CHILD I 63
offence being considered more serious dian that
of his subsequently killing two other persons, and
wounding a third. And, in the case of Wang
Yii-kao S J^ "o* i the offender, in trying to
prevent his mother from running forth into the
street, during a fit of lunacy, caused the woman
to tumble down and hurt herself. She recovered
perfectly, but the offender was sentenced to death
without revision — a special report however being
allowed to be presented to the Throne (H. A.
H. L. Supp. vol. XI. p. 63).
A person who brings any charge against his
parents is liable to capital punishment (H. A.
H. L. vol. XLVIII. p. 86), and the duty of
the offspring is to condone an offence, and
shield the parent (v. General Influence of the
Consideration of Relationship). If, however, the
parent be guilty of treason, not only must the
children not condone the offence, but they must
suffer punishment as well as the parent — being
castrated (v. Punishment — Castration). Further,
in cases where four persons of a family are
murdered and the succession is cut off thereby,
not only is the murderer rightly enough condemned
164 PARENT AND CHILD
to the lingering death, but his male children,
irrespective of age, are to be executed also —
so lonof that the number does not exceed that of
those murdered; and the wife and daughters of
the murderer are to be ofiven as slaves to the
relatives of the murdered persons, if they will take
them — otherwise they pass to the Tartars in Hi.
In the case of Wang Chih-pin I ^ fl^ , a child
of ten was condemned to death for murders by
his father (P. A. S. P. vol. XIV. p. 8). And in
another instance, for murders by their father, the
children were condemned to be castrated •, escaping
capital punishment, however, because three persons
only were killed — but the escape was very
narrow, for a fourth person, on whom the hopes
of a succession depended, had been severely injured
by the murderer, and had he not recovered the
children would have been executed.
A son must maintain his parents if they are
in want. If he fails to support them properly,
even though he has used his best efforts, he will
be liable to three years transportation and one
hundred blows, if the parents commit suicide or
their death is caused thereby: and in such case.
PARENT AND CHILD 1 65
if the son has used no special effort, he will be
liable to penal servitude for life (H. A. H. L.
Supp. vol. XIII, p. 6). The son is thus liable in
any case, the reasoning being that if a son has
no ability to trade, he can always learn a handicraft,
or earn a living as a coolie ; perfect cripples may
be excused perhaps, but if a son can walk, he
will be liable, though one leg is shorter than the
other (H. A. H. L. vol. XLIX. p. 63).
A son is naturally bound to defend his parents
in every way possible ; and further if he kills
his father's murderer upon the spot, he will be
let go free ; and if he do so subsequently, he will
only be bambooed. It is somewhat otherwise,
however, where the aggressor is a relative ; for
the above-mentioned rule applies to outsiders only ;
and though a son is justified in trying to save
his father from the violence of his elders, he must
not use force towards them. There is a curious
case on the point, wherein two sons killed their
uncle, who had that moment killed their father ;
the capital sentence was remitted on the ground
that the uncle being a younger brother had put
himself out of the pale of the law by the murder
I 66 PARENT AND CHILD
of his senior — had it been the other way ,
however, the sentence would have stood, though,
under the circumstances, it would not have been
carried out (P. A. S. P. vol. XXVI. p. 7). Though,
however, a son is practically justified in nearly every
instance in killing or seriously wounding in a parent's
defence, it is not allowable to plead the clause
and statutes relating hereto, in cases where a son
enters into a quarrel or affray jointly with his
parents.
The tie of consanguinity is not broken by the
re-marriage of the mother. So in the case of Chang
Yiian-shih 5R 7C i ^ the prisoner's mother had
married again, and the prisoner, who had killed
her second husband's son in her defence, was
excused the homicide, on the ground that he
stood in the relationship of son to her, and that
the tie was not broken by her re-marriage
^M'^U^-^ Z^ (H. A. H. L. vol.
XLIV. p. 97). And further with regard to the
position of the children of a former marriage as
respects the second husband, relationship exists
between the parties, whether the second husband
PARENT AND CHILD I 67
support the children or not ; the penalty for killing
them is less by two degrees, however, if the
second husband supports them, and by one degree
only, if he does not do so: and, in either case,
if the killing was intentional, and from cruelty
or temper, the relationship is thereby broken,
and the slayer will be given the full penalty of
his crime. Thus, on the latter point, there is a
brutal case, wherein a man kicked his wife's child
to death, and subsequently mutilated it to prevent
recognition. The Provincial Authorities sentenced
the offender merely to one hundred blows and
transportation for life — the penalty for killing
a nephew. The sentence was, however, disapproved
by the Board — the proper penalty being, as
it was pointed out, decapitation — though the child
had come to the second husband with its mother,
on the understanding that he would bring it up.
And so, also, in the similar case of Wang San
^ zr. , wherein the step-father for so behaving
to his six year old step-child was sentenced to
strangulation (P. A. S. P. vol. XXVI. p. 4). And
thus, similarly, with a step-mother who behaves
brutally to her step-child: as in a case wherein
i68
a step -son was buried alive, to get him out of
the way of the step-mother's own offspring. This
was a clear case for strangulation, though the
Board, on the ground that the woman did not
obtain the property, thought differently — yet, as
she showed a cruel and wicked disposition, it
was ordered that she be transported as a slave
to the frontiers, and the usual commutation to
a fine be not allowed (H. A. H. L. Supp. vol.
XII. p. 3). Further, the tie subsisting between
the step-parent and the step-child is not close
enough to prevent somewhat rigorous punishment
for a step-father who unreasonably corrects his
charge — as where, for instance, he kills the
child because it is dumb, and creates a disturbance
when it feels hungry.
Adoption. — This is very common in China, where
the continuity of the family is thought of very first
importance. If a man be childless, and increasing
his domestic relations does not repair the difficulty,
he will take his brother's second son, if he has
one, or perchance a nephew — the senior of
whom, if he be not an heir, having a prior
claim ; or, in default of a ne[jhew, a child of an
ADOPTION 169
entirely different family may be adopted — the
child chanCTinor its name.
If the parent be absent, it would appear that
the head of the clan may, with the approval
of the clansmen, appoint a successor f^ ji^ ^
Mt^^^^^mwmBziit w M m ^
gitS-S (H. A. H. L. vol. VIII. p. 8).
An adopted son stands in the same relation
to his adopted parents as a real son. If he beats
ill-treats or kills his adopted parents, he will
be tried and condemned under the special statutes
for enforcing filial piety. If he disobeys his
adopted parents, they may have him transported
to the plantations ; but ex converse |^ Icl |^ .K
if he kills a man in their defence, he may plead
justification (H. A. H. L. vol. XLIV. p. 92).
There is an objection legally in making an
adopted son an heir, if he does not belong to
the same clan as his adopted father {id^.
As regards the other relations, an adopted
son stands only to a limited extent in the
170 ILLEGITIMATE CHILDREN
position of a real son. He will be dealt with as
a servant in the family, if he offend against his
adopted father's cousins : but the relatives cannot
claim cir Constances attennantes, if they offend against
him {v. case of Hou Meng-pu ^^ V —
P. A. S. P. vol. XXV. p. 10): and the relatives
have no rigrht of life and death over him.
Illegitimate Children. — An illegitimate child
follows the father, is to take his name, and
be supported by him, or if he be dead by his
family — but seinble has no right to share
the paternal property (H, A. H. L. vol. LII.
p. 46). It would appear from the case of the
Gioro T'ang Wu-t'u JH ^ H ' that it is no
offence to kill an illegitimate child, if the killing
be done at or before birth (H. A. H. L. vol.
XXVI. p. 24) : and it is but a trivial offence
— sixty blows and a years' transportation —
if the killing be done after birth, and after the
child has been maintained for some time. Indeed,
it is a worse offence to stab the mistress than
to stab the child, though no serious hurt be done
her (H. A. H. L. vol. XXVI. p. 25). It is not
allowable to abandon an illegitimate child, save
HUSBAND AND WIFE lyi
for good cause shown ; and a fortiori to take
exception to and abandon in the woods the offspring
of the mistress by another ; and it is objectionable
and punishable to deposit such offspring on the
door-step of a neighbour (H. A. H. L. Supp. vol.
VII. p. 22).
SECTION III — HUSBAND AND WIFE
HUSBAND AND WIFE
A Chinese has but one wife ^ 5 though he
may in addition keep concubines ^ , or as they
are sometimes termed, secondary wives : both
enjoy a legal stahis. The distinction between
the two is great in reality; though occasionally,
as will be noticed, the terms are conjoined or
assimilated. A man's wife is considered as related
to all his family : his concubines are not so
considered : nor does the title of ''seniors to be
''treated with respect" ^ ^ ^ ^^ attach to
the latter (H. A. H. L. vol. IX. p. 43). To degrade
a wife to the level of a concubine, and elevate
172 MARRIAGE
a concubine to the status of a wife, is strictly
illegal. And, firstly, as to marriage.
Marriage. — I. Regarding the contraction
of the marriage tie : — {ci) Certain persons
must consent to the contract : the consensus of
the parties themselves being unimportant — the
said parties being, in fact, parties to a contract
agreed on by others : [5] Certain formalities and
ceremonial must be complied with : {c) The
respective position of the parties may affect
the validity of the marriage. Of these in their
order.
{a) and {6) consent and ceremonial.
Before any legal considerations operate, certain
introductory enquiries etc. must be made. Thus
it is necessary that the families interested should
assure themselves as to the physical capacity of
the respective parties — whether in regard of
age, infirmity, or disease. After this enquiry, it
is customary for the parties acting for the bride
to send to those acting for the bridegroom, a
note of eight characters ^ ife , representing the
year, month, day, and hour, of the bride's birth.
If the aforesaid encjuiries be satisfactory, and the
MARRIAGE 1 73
junction of the respective lots of the parties be
propitious, the marriage articles are drawn up,
and the amount of the marrias^e mfts determined.
On the recognition of the articles, either by
the exchange between the negotiating parties of
personal interviews with verbal assent, or actual
written assent , and subject , furthermore , to
compliance with certain ceremonial, such as the
bride's home-coming, receipt of gifts etc., the parties
are fully bound by the legal vmculum^ and enter
upon the responsibilities of the marriage state.
Breach of promise of marriage is not punishable
heavily, and no legal liability of any kind is
incurred until the recognition of the marriage
articles (sttpra).
On certain of these details in their order.
To constitute a legfal marriag-e the written
assent of the relatives of the woman must be
obtained ; it is not sufficient that the woman is
perfectly willing, if the relatives withhold their
assent (H. A. H. L. vol. IX. p. 36). The
consent of the father of the woman will suffice
without that of the mother, but not vice versa.
In the event of the death of either parent, the
174 MARRIAGE
consent of the survivor will in any case suffice.
An agreement entered into by the respective
parents oft either side, on behalf of their respective
children, while the latter are still infants, provided
the proper registers of name and birth have
been mutually exchanged, will constitute a
binding contract, and no subsequent ratification is
necessary.
It is held a marriage, though it be not
consummated, provided the betrothal is regular
m'ikmnn^^^^» (h. a. h, l.
vol. VIII. p. 4) : but any irregularity impairs
the efficacy of the tie. So, in a case where the
original intended had left for parts unknown,
without having taken his wife to his home, and
the younger brother after eight years' waiting
stepped into his shoes.
The receipt of the wedding gifts by an
unauthorised person does not constitute a legal
betrothal (H. A. H. L. vol. IX. p. 34).
It is not held to be a complete marriage,
though the assent of the parents has been given,
and the wedding presents received ftt] ;5c K yt
•'l^ ^ ^ ijis ' if the marriage lines have not been
MARRIAGE 1 75
given to the bridegroom ^ ^n xi^ W i^^-)-
As regards dowry, a w^fe sometimes brings
it, sometimes not : generally the contract provides
for the payment of earnest money, varying in
amount with the condition of the parties.
If there be fraud the marriao-e is null ; and
though the parties do not separate as by law
provided, the wife will not incur the responsibilities
of the married state. Thus, in the case of M''^
Wang i .^ , an old reprobate, knowing that
the girl's parents would refuse him, sent a
good looking young nephew to represent him
in the preliminary stages — and thereby got the
contract signed, and obtained possession of his
bride. He ill-treated her, and she subsequently
strangled him — the case beingr treated as
simple unjustifiable homicide of a man by whom
the woman had been injured.
It is an offence to marry or to stand affianced
during the legal period of mourning for a father,
mother, father-in-law, mother-in-law, and husband
(on this last point v. infra — Position of
Parties etc.) — the penalties varying from lOO
blows downwards, according to the nature of
176 MARRIAGE
the relationship , the stage attained in the
nuptial agreement, and the respective status of
the parties. It is also an offence, punishable
with 1 00 blows, to marry during the imprisonment
of parents or grandparents for a capital offence.
As regards the placing of the responsibility
where a marriage is contracted contrary to law,
the rules are various, and in some points are
dealt with incidentally, as touching particular cases.
Three general rules may be given. Firstly, if the
giver-away of the bride, or the contractor of the
marriage on the part of the husband, is the
paternal or maternal grandfather, grandmother,
father, mother, paternal uncle or aunt, or paternal
elder male or female cousin, the punishment
prescribed by law will be inflicted on such relations
only, and the parties will not be held responsible.
Secondly, where the giver-away, or contractor, is
a more remote relation than above stated, but is
the chief agent in procuring the unlawful marriage,
such giver-away or contractor will be punished as
principal, and the married parties as accessories.
Thirdly, where the unlawful marriage originated
with die parties themselv(\s, they will be punished
MARRIAGE 1 77
as principals, and the go-betweens as accessories.
In regard of this latter rule, however, distinction
must be drawn between cases which originated
with the act of the parties, and cases where the
parties 'instigated' others to contract the unlawful
marriage. Strange as it may seem, where the
marriaofe was contracted 'at the instigation and
'request of the parties', all concerned will be
punished as principals.
(c) Position of the parties and effect thereof
In regard of the position of the parties,
relationship, whether natural or artificial, may bar
marriao-e. So inter-marriaore is forbidden between
relations by blood or marriage to the fourth
degree, between persons of the same family name,
and between free persons and slaves. The mere
position of a person may bar marriage ; as in the
case of a Buddhist or Taoist priest, or in the case
of a female offender who has escaped the clutches
of the law. Where the above illeg^al and abortive
marriages are formed, penalties of a varying number
of strokes of the bamboo are incurred. But a
heavy penalty occasionally attaches — thus it is
strangulation to marry a deceased brother's widow.
I 78 MARRIAGE
On certain of these points, and other incidental
considerations, in their order.
A man ma)' not marry the wife of any relative
for wliom he has to wear fine hemp as mourning.
If the parents arrange the marriage 3E i^^
the penalty attaches to them alone. If a relative
arranges the marriage of his own motion, he will
be punished as principal and the parties as
accessories: if he arrange it at the instigation of
the parties , the parties will be punished as
principals, and the relative as an accessory. The
penalty for illicit carnal knowledge in the foregoing
instance is, for th(^ principal, one hundred blows
and three years' transportation — if the relationship
of the deceased necessitate the wearing of the finest
grades of fine hemp mourning ; and sixty blows
and one years' transportation — if the aforesaid
relationship necessitate the wearing of the less
fine grades of fine hemp mourning. Accessories
an; to receive one hundred blows, irrespective of
the grade of mourning used. By a later statute,
the pcnalt)- for such illicit knowledge was modified
to transportation to the frontiers. If principals are
allowed to commute the penalty, persons dragged
MARRIAGE 1 79
into the case by them are also allowed the same
privilege.
A man may not marry his deceased brother's
wife under penalty of death, although he may
marry the said wife's sister, without waiting for
his brother's decease.
A mother and daughter may not marry a
father and son; if they do so, the daughter's
marriage will be considered null — though it
does not seem to be a very serious offence for the
mother to live with the father (H. A. H. L.
vol. XLIV. p. 17).
An official must not marry within his jurisdiction.
A peculiar instance is that of a head constable,
who was degraded and given eighty blows, for
marrying the daughter of an offender under his
charge (H. A. H. L. Supp. vol. III. p. 31).
An official must not buy a concubine within
his jurisdiction under penalty, nominally, of eighty
blows, but in reality, of fine, degradation of three
steps, and removal.
A person having official rank must not marry,
or take as a secondary wife, an actress, or one
of the dcDii-uwnde. Thus, in the case of Te Ying-o
l8o MARRIAGE
^ :^ f^ , a member of the Imperial Family was
sentenced to sixty blows — to be actually carried
out — for taking- a singing girl as a secondary wife
merely (H. A. H. L. Supp. vol. III. p. 60).
A betrothed girl may not marry her deceased
bridegroom's brother under penalty of death; and
distinction is drawn between this, and a woman
marrying her deceased husband's brother —
wherein, if her elders arranged the marriage, the
woman may escape punishment.
If her intended be lost to sight for three years,
his betrothed wife may marry again, by giving
notice to the authorities — but he must be really
lost sight of, not merely absent on business. When
her intended returns, his betrothed reverts to him.
If a widow wishes to again marry, her intended
must obtain the consent of her parents, and that
her mother-in-law consent, is not sufficient. So Kao
Ch'eng-yung ^P i^ ^ , was sentenced to military
servitude in the salt mines, for carrying off a
widow — though her mother-in-law was agreeable
to her marriage — because two people involved
in tlie case had chosen to commit suicide (H. A.
II. L. Supp. \ol. III. p. 32). The marriage must
MARRIAGE
also be arranged by the deceased husband's father
or uncles, though if the widow's deceased husband
left no persons qualified to dispose of her, her
own mother may take the place of such persons
^mmAmmnm±m (h. a. h. l.
vol. IX. p. 34).
Again a decent interval must elapse before
re-marriage — and a woman who marries again,
before the period of mourning for her husband
is over, is a naughty woman, and the second
marriage will be dissolved (case of M^'^ Wang
i R , and M^« Sun -5^ ^ , H. A. H. L.
vol. III. p. 46). But, to be so treated, the second
marriage must have been consummated, and she
must have g-one to her new husband's house.
It would appear, however, that if the woman
only married again because her late husband's
family worried her to do so, since they were too
poor to support her, the law will allow that there
is some distinction to be made — and though she
is not to be considered a proper person, she is
not to be stigmatized as a wicked woman. She
is something between the two (case of M''^ Tai
^^, H. A. H. L. Supp. vol. III. p. 48).
1 82 MARRIAGE
A widow who re-marries, even though her
husband died while she was yet a child , and
notwithstanding compliance with all formalities,
is nevertheless looked down upon ; but, inasmuch
as there is no general law prohibiting a widow
from marrying, the discomfort of public contempt
is frequently endured. It is not well to press a suit
too hardly on a widow — for if she prefers hanging
herself to marrying her suitor, he will be sent
to the frontiers for military servitude (H. A. H.
L. vol. III. p. 30). Nor is it well for a son to
force his father's secondary wife to marry again
— if she does not want to [ici^j.
Buddhist and Taoist priests may not marry,
under penalty of 100 blows and expulsion from
their order.
A person may not marry a female fugitive
from justice, under penalty of incurring the
punishment due her, less two degrees.
II. As regards the dissohition of the tie. —
If a man be impotent, he can, it appears from
a case, be forced to give his wife a deed of
divorce, and if she has behaved well during the
time she has lived with him, she may be allowed
MARRIAGE 1 8;
to retain her dowry. In the case referred to,
it is, however, to be noted, that the girl had
lived for eight years with her incomplete husband,
that during this period she had dutifully attended
on her mother-in-law, and that the decree, in the
first instance, was that half the dowry only should
be returned (c'. the ^ Vp ^ U , vol. XX. p. 25).
It is an offence for a husband to sell f^K, ^
his wife to another — involvino- all concerned in
the penalty of one hundred blows ; while the
woman is divorced from both husbands, and
given back to her family. Yet the law will
sometimes sanction such a sale, where the
husband is too poor to maintain his wife, and
she has no family to go back to ^ and will
confirm the second marriage (H. A. H. L. vol.
LII. p. 49) ; and, in fact, the practice is, in general,
though illegal, allowed — save under aggravated
circumstances (v. p. 186).
To trade on a wife's honour is also grood
ground for the dissolution of the marital relationship,
and, on notification to the authorities, the parties
are to be separated, and the woman given back
to her relations.
1S4 jMARRIAGE
Rut the o^rounds upon which a wife may obtain
divorce from a husband are few and cogent
compared widi the reverse case. Talkativeness,
wantonness, theft, barrenness, disobedience to a
husband's parents, jealousy, inveterate infirmity,
are all valid reasons ; and these, which are
known as the seven valid grounds for divorce,
do not exhaust the list — other reasons, such
as infidelity (infra) ^ having been subsequently
added by statute.
In rc^gard of a wife's disobedience to the
husband's parents, the right course is for the
husband to hand her over to the authorities
first of all.
In regard of talkativeness, a wife must use
discretion, and keep her tongue under discipline :
she should even forbear thoutrh her husband
comes home drunk — even to such an extent as
to be unc(jnscious of what he is doing S S$
In pleadir.g the statute in regard of infidelity,
it may Ije remarked that it is an immaterial
point whether or not the marriage was legal in
the first case, provided the parties had been
MARRIAGE 185
living- together as man and wife (H. A. H. L.
vol. XXVI. p. 7) : in other cases, the legality
of the marriage may or may not be an
important consideration, according to circumstances.
The sundry reasons for which a wife may be
divorced are subject to three equitable exceptions,
namely : — (a) where the wife has for three
years mourned for her husband's parents ; {d)
where the family has become rich after having
been poor previous to and at the time of
marriage ; (c) where the wife has no parents living
to receive her back again.
In addition to the reasons for which a husband
may divorce a wife, or a wife obtain divorce
from her husband, there is a good mutual ground
on which the parties may obtain divorce — namely,
where the parties do not agree, and are desirous
of separation.
Where the divorce is complete, the marriage
relation is yet considered to have some force, if
the wife has not married aofain and wishes to
return again to the husband (H. A. H. L. Supp.
vol. XI. p. 14): if the wife has married again,
all previous marital relationship, and ties due
l86 El'l'ECT OF THE RELATlONSllir OV IlUSliANU AND WIKE
thereto, are severed (H. A. H. L. Supp. vol.
XI. p. I i). The effect of a divorce may, therefore,
give rise to strange judicial decisions; as in the
case of Shcng Fu-hsien Ml "I'ffl W i wherein it
was laid down that where a divorced wife and
her child were murdered, they could not be
considered as members of the same family (H.
A. H. L. Supp. vol. VIII. p. 56) — a parallel
with the Countess of Suffolk's case.
Effect of tJie relationship of husband and wife. —
Husbands have very considerable powers of life
and death and otherwise over their wives — yet
subject, also, as will be seen, to considerable
limitations.
A husband who kills his wife will, in general,
only be sentenced to strangulation subject to
revision, whether his crime be deliberate,
pre-determined murder, or whatever the
circumstances may be [cf. the reverse case of
a wife killing her husband — the sentence
being decapitation).
Circonstances Attenuantes are allowed, as a
matter of course, if a husband kills his wife for
striking his parents or himself — even if the
EFFECT OF THE RELATIONSHIP OF HUSBAND AND WIFE 1 87
wound inflicted be but a scratch. But the most
violent conduct on the wife's part, if she does
the husband no actual bodily harm, running
away even (if she does not play the harlot),
will only enable the husband's name to be put
on the list of Cases Reserved — v. cases of Li
Chiang ^ */X , and Tsou Kuo-hsien ^P iMi ^
(H. A. H. L. vol. II. pp. 26—27).
If a wife for whose death the capital sentence
has been recorded aofainst the husband is shown
to have been undutiful, or to have given him
just cause for anger, further commutation to one
hundred blows and three year's transportation
will be accorded, on the case coming up for
revision at the Autumn Assize, in place of the
ordinary commuted sentence of transportation for
life (H. A. H. L. vol. XL. p. 26).
In the case of adultery, a husband may kill
both his guilty wife and the adulterer, if he
catch them in flagrante delicto^ but, whether in
the case of the adulterer or the wife, he should
do so on the instant (H. A. H. L. vol. III. p. 55) ;
though it is also allowable for the husband to
kill the adulterer outside the house, if it be in
l88 El-I-KCT Ol'- TIIK RELATIONSHir OK HUSHANU AND WlFli
chase. But if the husband first ties up the
adulterer, and then kills him, he will be guilty
of a transportable offence (id.). The parties must
of course be properly married. If the husband kills
his wife afterwards, he will be liable to three years'
transportation and i oo blows ; and though it be
four years afterwards, and though he has
apologized, so will the adulterer.
It ma)' be remarked here, also, that in regard
of attacks upon the chastity of a wife, a father,
mother, father-in-law or mother-in-law stand in
the same position as the husband, and what he
may do to the man who attacked his honour,
they may do also. And the privilege extends to
a father by adoption, and to the mother who
has brought a man up. But brothers, uncles
etc., have not such a ricrht ; for the feelino- is
not the same, nor the authority to act so full
— it does not touch them so closely ^ 'Jr
ffli**^**^iiJ'ffli).SJ5^# (H. A.
H. L. vol. XXVI. p. 17). Though, however,
these relatives have no right of killing, they
will only be partially responsible for mere severe
injury they may inflict while interfering — and for
EFFECT OF THE RELATIONSHIP OF HUSBAND AND WIFE 1 89
slight injury, not at all. But other more distant
relations will be liable in any event, for the law
discourages undue interference.
The common practice of selling a wife is
per se illegal {v. p. i8i), and in theory only
allowed under exceptional circumstances (///.); in
practice, however, it is "winked at". Aggravating
circumstances alter the case; e.g.^ if the woman
does not like to be so disposed of, and
commits suicide in consequence, the practice
becomes comparatively serious — the old husband
receiving three years transportation, and the new
one and the matchmaker two years each (H.
A. H. L. Supp. vol. III. p. 56). So in the
case of Huang Te-hsiu ^ ^ (^ , wherein a
husband was sentenced to three year's transportation
and one hundred blows, because his wife committed
suicide rather than consent to be sold to another
husband {id.).
In correcting his wife, a husband must exercise
his judgment; it is in itself no offence to strike
his wife ; but if he knocks her brains out, when
told by his mother-in-law to give her a whipping,
he will be responsible for the murder (H. A.
I go EFFECT OF THE RELATIONSHIP OF HUSBAND AND WIFE
H. L. Siipp. vol. XL. pp. 1 6 & 17). The wife
must brin^r her action in person, otherwise none
will lie (iW.).
If a husband rupture his wife, in an attempt
to force her to submit to his wishes, it is an
assault, and renders him liable to the full
consequences — z'. decision of the Board in the
case of Lu Ch^ao-fan |^ ^ Hi (H. A. H. L.
vol. XL. p. 16).
If a husband trade on his wife's honour, the
marital relationship is extinguished — with the result
that if he subsequentl)- kill her, he cannot claim
the privilege of a husband in mitigation of the
penalty.
It would seem that a husband can claim no
marital rights , if he has been for live years in
exile, without writing to his family, and his wife
has in the meantime married again — although
the law is not clear on the subject (H. A. H.
L. vol. XL. p. i).
The reader will remark, no doubt, that, as
far as can be judged from the foregoing, a wife
is, on the whole, regarded somewhat tenderly,
and that her peace of mind and liberty are
EFFECT OF THE RELATIONSHIP OF HUSBAND AND WIFE I9I
carefully and equitably considered — which is,
perhaps, true, legally. The case of P'ei Ping-jo
^ ^' >^i will, however, show that, in practice,
marriage may not be an enviable state in China,
and that a husband may be dyed in the blood
of his wives and concubines, before he can be
permanently removed. In the case mentioned,
the offender seems to have been a regular
Blue Beard, who had married five wives, one
after another. His first wife, he drove to hang
herself, his second, to drown herself, his third,
to suspend herself to a tree — one only dying
a natural death. He had also taken to himself
four concubines, one of whom alone survived.
The first having been beaten to death, the
second forced to run away, and the third flogged
and burnt with red hot irons, so that she died.
To vary the amusements, he was said incidentally
to have beaten to death a slave girl and waiting
lad. Left with his wife and concubine, he amused
himself with sticking a knife into the fleshy part
of the one (once indeed cutting a rump steak
from her and eating it with his wine), and burning
the other with hot irons, or beating her, as the
192 KKl'ECT Ol" THE RKLATIONSHIP OF HUSI5AND AND WIFE
humour seized him. For these several enormities,
he was declared unfit to live, and as the
murders he committed scarcely involved more
than strangulation subject to revision, a special
decree was issued, and his immediate decapitation
ordered (H. A. H. L. vol. XL. p. 49).
If a wife kill her husband, though without
intention, she will be sentenced to decapitation ;
and even if it be a case where there are no
aggravating circumstances, the sentence is left
undisturbed to be carried out or not, as may be ;
but if there are extenuating circumstances, the
Board will apply for leave to alter the sentence
to decapitation subject to Revision at the Autumn
Assize (H. A. H. L. vol. XL. p. 42).
Until the 7''^ year of Ch'ien Lung, if a wife
beat her husband, or if the wives primary and
secondary beat each other, the penalties incurred
thereby were commuted by a fine which the
husband had to pay. But the incongruity being
then pointed out, it was decreed that, where a
husband, on being beaten or injured, demanded
a separation from his offending wife, the sentence
should not be commuted by fine, but executed:
EFFECT OF THE RELATIONSHIP OF HUSBAND AND WIFE I93
though if the husband forgave his wife, it was
only fair of course that he should pay her
fine. Where the wives fought, and the law had
to intervene, it was also decreed, that such part
of the sentence as involved corporal correction
should be carried out, and the other portion
commuted (H. A. H. L. vol. XL. p. 6).
If a wife strike any of her husband's relations
in the first, second, third, or fourth degree, she
will incur the penalty to which her husband
would have been liable had he so done —
the punishment not , however , to exceed
transportation for life and one hundred blows,
except in cases of death arising from the blow,
when the wife becomes liable to decapitation,
if it be a senior relation who dies, and to
strangulation, if it be a junior relation. In this
connection, it is convenient to notice that a widow,
who strikes the parents of her deceased husband, is
liable to the same penalty as if such husband
had been living.
If a wife be induced to elope, she will be
sentenced to one degree less punishment than
her seducer /. e. to one hundred blows and
C. E. G. 13
194 EFFECT OF THE RELATIONSIIir OF HUSBAND AND WIFE
three \'ears transportation — the former to be
carried out, and the latter to be commuted for
a fine (H. A. H. L. Supp. vol. VII. p. 22).
If a wife commits adultery with the consent
of her husband, and the paramour kills the
latter, the wife will not be punished as being
responsible for her husband's murder, provided
she knew nothing about it. She will however
be punished for her immoral behaviour, and
she is under an oblig-ation to grive immediate
information regarding the murder, and, moreover
she must not have any further relations with
the murderer, or she will not be allowed to
escape thus easily (H. A. H. L. vol. XXIV.
pp. 56 & 57). But where the husband was
not a consenting party, and the paramour kills
him, the wife will be capitally liable, whether
she knew anything about it or not : grace onh'
being shown where the murder was sudden and
unpremeditated, the lover killing the husband in
the hurry of trying to escape; and then, again,
onl\- if the wife fly to the rescue, and give the
alarm, and do her best to l)ring th(^ murderer
to justice, by denouncing him to th(! Authorities —
EFFECT OF THE RELATIONSHIP OF HUSBAND AND WIFE 1 95
when penal servitude, ordinarily redeemable by
fine, will be inflicted. Again, in respect of the
infliction of the capital penalty in these cases
^^the death penalt)- can only attach to the wife
''after her paramour had killed her husband"
/£,, and "cannot attach to her in anticipation
"before her paramour had killed her mate"
T> i^ J^ S * * ^^^ S * ^ ^ H ^
(H. A. H. L. vol. XXVIII. p. 13).
Finally, a few words as regards the respective
liability of the parties for offences committed
by one or the other. A husband is usually to
some extent liable for the offences of his wife ;
but his punishment is not heavy therefor —
the wife as a rule suffering principally. A wife
may, in certain cases, be held partially liable
for the offences of her husband ; as in the case
of treason by the latter, when, on his punishment,
she will be punished also — by being given as a
slave to a meritorious official. Again if the husband
be banished for an offence, though it is now in
general optional with the offender whether his
196 OTHER NATURAL RELATIONSHIPS
wife accompanies him or not, yet, in Mongolia,
it is the rule that, if the offence, for which the
man is banished, was participation in robbery
and murder, or the taking of a principal part
in robber}' with violence, his wife also must be
sent with him into service with the garrisons
(H. A. H. L. vol. XVI. p. 28).
SECTION IV OTHER NATURAL RELATIONSHIPS
OTHER NATURAL RELATIONSHIPS
Father s and Mother s-i?i-laiv ; Sons and Daughter s-
in-law. — These relations are regarded with
solicitude. So in the case of M''* Li 7iee Wang
^ J .^ 1 a woman tired out with reaping, slipped
and caused her father-in-law to hurt himself, and
onl\- as a .special favour was allowed to pay a
fine, in place of the penalty of one hundred blows
and three )ears' transportation (H. A. H. L.
Supp. vol. XI. p. 64).
It is more serious to kill one's mother-in-law
tlian to kill one's wife — a possibly wise provision :
FATHERS AND MOTHERS-IN-LAW; SONS AND DAUGHTERS-IN-LAW 1 97
but, if die mother-in-law has led one's wife astray,
or been a party to her desertion, the relationship
between son-in-law and mother-in-law, and the
consequences thereof, come thereby to an end.
And so in the case of Li Hsiao-sheng ^ /!> ^ ,
who tied his mother-in-law's hands behind her
back, burned her with joss-sticks, and generally
did her to death. In the first instance, Li was
sentenced to decapitation, but, on its appearing
that the mother-in-law had been a consenting party
to the wife contracting a second connection, the
finding was quashed (H. A. H. L. Vol. XL. p. 53).
A mother-in-law must be careful about killino"
her daughter-in-law — for it is considered worse
than killing her own child; and she must be
careful also as regards throwing the body into
the river — for it is considered worse than so
treating the remains of her own child : though,
so far as relationship is concerned, her offspring
and a dauo-hter-in-law stand on the same footing,
yet the feeling is not the same (H. A. H. L.
vol. XXI. p. 12).
A father-in-law who, contrary to his own
father's wish, beats to death or otherwise kills
HjS UNCLES AND AUNTS; NKl'HKWS AND NIECES
his son or daiighter-in-law, and although for
good cause, will not be supported by the law —
as in a case where a father-in-law beat his
daughter-in-law to death for disobedience, contrary
to his own father's injunction (H. A, H. L. Supp.
vol. XI. p. 64).
The tie existing between the father and
mother-in-law and the wife does not cease to
exist on the husband's death — although the wife
marries again; but it does cease to exist, if the
parties are divorced [q. z'.), and the wife takes
another partner. Nor does the tie necessarily
have no existence if the marriage was illep-al —
o o
provided that it was public, and contracted in
ignorance of the law.
Uncles and Annts ; Nepheivs and Nieces. —
These relations are regarded with solicitude, and
the relationship is one of considerable weight.
r\jr a nephew or a niece to kill, or severely
wound, an uncle or an aunt, is a capital offence:
and this, whether die killino; or the woundinof
be intentional, or accidental, or even morally
justifiable. So to kill an uncle or an aunt in
self-defence is a capital offence. In the case of
UNCLES AND AUNTS ; NEPHEWS AND NIECES 1 99
M^"^ Chou j^ ^ , an aunt in tr) ing to strangle
a niece in the dark, placed a finger in her intended
victim's mouth. The niece, not knowing who it
was, and imagining it was someone trying to
ravish her, bit the finger off: erysipelas super\^ened,
and the aunt died. For her offence, the niece
was sentenced to strangulation without revision
(H. A. H. L. Supp. vol. XI. p. 63). Even to
merely severely wound an uncle or an aunt is
a case for a capital sentence ; and this though
the act was done in defence of a parent —
but, in the latter event, the sentence will be
nominal, and subject to commutation. Thus in
the case of Ch'ang Hsiao-liu ^ >^h ^,3. nephew
crippled his uncle in the endeavour to prevent
the latter from braining his father. The nephew
was sentenced (but sentenced onl)) to strangulation
(H. A. H. L. Supp. vol. XI. p. 56).
An uncle or an aunt may, apparently, with
some impunity, murder a nephew or a niece.
So in the case of Hsia Sheng-pa 5 W fe 1 ^
brute who was threatened with legal proceedings
murdered his young niece — with the intention
of charging his opponent with the act. The murderer
HKOTHERS
did not indeed escape immune ; but received
the benefit of his relationship, and was merely
sent to military servitude (ante — Inequality of
Action of Courts). It is, however, subrhitted
that the above case is not a true exposition of
the law on the point. The case of M''^ I 7iee
Hsiao ^ Wi ^ seems little better authority.
In the latter case, an aunt punished a thieving
niece by drowning her, and was not allowed
the benefit of her relationship {id.). This case
seems to err on the one side, as much as that
of Hsia Sheng-pa does on the other, and the
true rule must lie something- between the two
decisions : — i. e. the jns vitae necisqtte attaching
to the position of uncle or aunt must be
reasonably exercised, and subject to all the
circumstances of the case.
Brothers. — These relations are obviously more
on an equalit), but distinction is drawn between
elder and )ounger brothers. So if an elder
brother kill his junior, the penalty for homicide
will be reduced ; and if the junior has in an)- way
deserved so to die, the penalty will still further
be reduced — as in the case of Wu Kuo-chen
BROTHERS
:^l|1l lfl# (H. A. H. L. Siipp. vol. XL p. 57).
In the case of Chou Yung-t'ai J3 fejt ^ , the
offender, hearing a mad dog barking during the
night, endeavoured to shoot it, and killed his
brother who was lying out in the open drunk.
The Court was ready to admit that the offender
had no intention of injuring any one, and did
not know that his brother was anywhere near —
but sentenced him to transportation for life
(H. A. H. L. Supp. vol. XI. p. 48). In the
case of Lai Ts'ai-yiin ^ ^ ^ , extenuating
circumstances were admitted, the case being of
a peculiar nature — the offender therein assisting
his uncle to drown his younger brother. It appeared
that the young man drowned had kicked his
uncle, and the offender endeavoured to beg him
off. The uncle, however, announced his intention
of pitching the saucy nephew into the river, and
summoned the offender to assist him therein —
the offender, in consequence, assisting under
compulsion. The penalty of strangulation, to which
the offender was sentenced, was in the first place
t^ W- "Sd reduced to transportation for life —
because the victim was a younger brother — and
ARTIFICIAL KEI.ATIONSHirS — I'RELIMINARY
then further reduced to one hundred blows and
three )'ears' transportation — because the murder
was not premeditated (H. A. H, L, Supp. vol.
XI. p. 57),
Sons of the same mother, but b)- different
fathers, if lix'ino- separate, do not wear mourning
for each other, and are not treated as relations.
SECTION V — ARTIFICIAL RELATIONSHIPS —
PRELIMINARY MASTER AND PUPIL MASTER AND
SERVANT AND SLAVES WET-NURSE
AND CHILD
AJ^ TIFICIAL KELA TIONSHIPS
PRELIMINARY
Two of such relationships are considered here ;
Ijut it is well to mention that there are also
other relationships which have a very real meaning,
e. g. : — [a) that existing between an official and the
jjeople, and vice versa — an official in office is
considered as paj'cns patriae^ and out of office
may be regarded as in some sort a senior : the
relationship may be further likened to natural
MASTER AND PUI'II, 203
relationship, according- to the importance of the
ofificial in question ; (d) relationship between free
persons and slaves and vice versa ^ and slaves
inter se.
MASTER AND PUPIL
The relationship is of a comprehensive description,
embracinor that existing- between master and
apprentice, priest and disciple, tutor and scholar.
In some measure, a master stands in the position
of a near relative to his pupil — a pupil owes
respect to his master, must wear mourning for
him, and is punished more severely than an
ordinary person, if he assaults him. As regards
the respective powers and liabilities, the position
of the two is, in general, regulated by the special
laws affecting relations (H. A. H. L. vol. XXXVIII.
p. 52). So, in the case of a master and his
female pupil, if the master sticks a knife into a
man who has tried to ravish his charge, he will
be held excused for giving way to his righteous
anoer — a rule extending to the case of a nun in
a nunnery (H. A. H. L. Supp. vol. VIII. p. 28).
As regards powers of correction, the limit is
204 MAS'IKR AND rUPll,
reason. And to be able to exercise these reasonable
powers of correction, it is essential that the master
should not have forfeited his claim to the respect
of the pupil. These conditions being complied
with, if a master chance to cause the death of
a pupil in the course of correction, the penalty
will onl\' be, at the most, transportation for life.
And so with a schoolmaster, if in properly
punishing his pupils, he chances to kill them,
the penalt)' will be one hundred blows and three
years' transportation — but the master cannot
claim an)' privilege if he kills them deliberately,
or uses a lethal weapon, or in fact behaves
unreasonably. It is not correcting an apprentice
properl)-, to knock him over among the pots
and pans, because he is clumsy — v. case of
Li Pang-an ^ ^ ^ (P. A. S. P. vol. XIX.
p. 35): nor for a priest to throw a stone at
his disciple, because he sniggers at his mentor —
V. case of the priest P'ei Lin \^ 1^ (P. A. S. P.
vol. XIX. p. 40) : nor to hit an apprentice so
severely as to expose the bone. Nor was that
head-eunuch to be commended, who twice thrashed
a stupid under-eunuch so severely, that the wounds
MASTER AND PUPIL 20$
festered, and the eunuch died — and for this
the offender was sentenced to strangulation subject
to revision (H. A. H. L. Supp. vol. X. p. 56).
A master must pay some consideration to the
status of a pupil, and so may not degrade an
apprentice by turning him into an actor — though
with the consent of the parents of his charge
(H. A. H. L. Supp. vol. XIV. p. 31).
As regards the responsibility of a tutor for a
scholar , it must be remembered that the former
is in a position of trust ; and consequently, if he
leads his charge astray, his behaviour is considered
particularly disgraceful — and the penalty for his
immorality will be increased two degrees (H. A,
H. L. vol. LII. p. 45).
As regards the duration of the tie. In literature
and philosophy, the relationship of tutor and
scholar lasts from the first day on for ever ;
and seemingly so, also, in the case of priest and
disciple : but in the case of handicraft, if the
pupil be out of his apprenticeship, the relationship
comes to an end — and, moreover, does not come
into being, until the master has earned a right
to his apprentice's submission, by having already
2o6 PRIEST AND DISCIl'LK
had him for some time under his charge. In
connection also with the point as to the entry
on the relationship, it is noticeable that the tie
between a priest and a disciple must have been
established according to legal form — z'. case of
K'ai Yiieh ^ M (P- A. S. P. vol. XIX. p. 43).
Priest and Disciple. — The relation of priest
and disciple is, in some ways, a curious one, and
claims a slight separate notice. Buddhist and
Taoist priests, on attaining the age of forty,
but not before, are allowed — on obtaining the
requisite licence — to take one disciple to
instruct in the ways of their religion : but the
applicant must be under sixteen years of age,
and may not enter the priesthood, if there are
not three able-bodied men left in his family.
At one period no restrictions were made in this
connection, but it was found advisable to legislate,
by reason of joersons pretending to enter the
priesthood, to avoid the Government corvees. A
priest as such has no special privileges — on the
contrary, though vis-a-vis his disciple in the
position of a .senior relation (as uncle and nephew),
his actions are viewed witli a o"reater kecmness
MASTER AND SERVANT AND SLAVES 207
of legal vision (H. A. H. L. vol. XXXVIII.
p.. 42).
MASTER AND SERVANT AND SLAVES
Slaves and servants are placed on a different
footing q2ia their masters and their masters'
relatives to the rest of the world, and offences
committed by them are more severely visited
than they would be with strangers : even in
the case of manumitted slaves, the tie remains
to some extent ; and the free son of a pair of
manumitted slaves will still be considered to
stand, in the e)e of the law, in the position of
servant to his parents' master. An offence
committed by a servant or a slave, at the
instigation or order of a master, subjects the
servant or slave to a reduced punishment.
Master and Servant. — To constitute the
relation of master and servant, the mere fact
of service for wages is not enough ; and, as
regards an offending- servant , to bring- him
within the law touching the servile class, there
2o8 MASTER ANU SERVANT
must have been, in the first instance, either a
deed or an agreement for a term of years (not
necessarily written), or the person must have
been for five years or more in the emplo)- of
the particular individual (and an understanding
to serve for a portion of a year at a fixed
wage has been held insufficient — P. A. S. P.
vol. XXI. p. 42). On the other hand, also,
for a master to plead the special laws in excuse,
there must be an agreement either in writing,
or for a term of years (P. A. S. P. vol. XXI. p. 3).
A girl brought up by a bawd, with a view
to her future prostitution — although bought
the first instance — is reo-arded neither as a
servant, nor as a slave, and is not considered
to owe any duty to her trainer (H. A. H. L.
Supp. vol. XIV. p. 32).
It is laid down in certain cases that improper
behaviour on the part of a master will break
the bond binding his servant to respect him.
But it does not alwa)s follow, and if a servant,
under this impression, strikes his master for
indecent behaviour, he ma\' suffer heavily therefor.
For the practice to apply, it would seem that
Master and servant 209
there must not only be the clearest evidence of
the attempted rape (which is generally the admission
of the ravish er), but also the ravisher must be
twenty years older than the patient. And so in
the case of Shao Hsing nR M ■> where a farm
labourer kicked and killed his master for making
improper advances, and the Board insisted that
the sentence of strang-ulation was not sufficient
(P. A. S. P. App. III. p. i): and so, also, in
a hard case where a servant girl kicked and
killed her master who was attempting to ravish
her, decapitation subject to revision was adjudged.
On the other hand, the relationship may not be
pleaded where a master strangles his maid to
prevent her letting out his little indiscretions — as in
the case of Hsli Erh-ch'ieh f^ H ^Sl (P- A.
S. P. vol. XXI. p. 35).
Offences by a servant against a master are
on a different footing to offences in the ordinary
way. So, of robbery, the relationship will take
the case out of the category of larceny, and bring
it under some other clause (H. A. H. L. vol.
XVI. p. 6). So, again, to get a deed out of a
master under false pretences will, if the trick be
C. E. G. 14
MASTER AND SLAVES
effectual in gaining anything, subject the offender
to the same punishment indeed as in the ordinar)-
\va\', but under a different clause ; and if the
trick has not succeeded, the offending servant
will be bambooed for undutiful conduct (H. A.
H. L. Supp. vol. VI. p. 35).
Master and Slaves. — Slaves are held of
vile estate, and though it is lawful to appl)' for
their registration as citizens if their master draw
up deeds setting them free, \et they have only
the riorht to cultivate the land or carrv on
business H W St ft -M- :^ , and not till tliree
generations are passed can they present themselves
at the examinations, or obtain office (H. A. H.
L. vol. XL VIII. p. 83).
Slavery ordinariK- arises from three causes,
sale, punishment, and birth. Parents, for instance,
have this right over their children hs way of
sale merel)', or b\- way of punishment. The
latter point has already to some extent been
dealt with : as regards the former, it is to be
noted that parents niay sell their children into
slavery, if they be driven b\- povert\- to do so,
but not for lust of gain (H. A. H. L. vol. XX.
MASTER AND SLAVES
p. II et post). So a father was punished ,
though with a mitigated penalty, for selling his
daughter, who had been sent back to him, like
a bad shilling, by her husband (H. A. H. L.
vol. XX. p. 1 9) : and so, also, a father-in-law
was punished with a mitigated penalty, for selling
a girl betrothed to his son, because she had a
bad squint — in addition, also, the betrothal
was cancelled, and the girl returned to her
father [id.) : and an official has been sentenced
to an aggravated penalt}% for selling as a
concubine, a niece over whom he was guardian
(H. A. H. L. vol. XX. p. 21).
A parent having sold his son as a slave,
must not induce him to run away, or assist him
in running away afterwards, under penalty of
one hundred blows and three years' transportation-,
while the slave will, in such case (and though
under the influence of his parent) receive eighty
blows, for doing what he ought not to do (H.
A. H. L. Supp. vol. VII. p. 20).
The Manchu Princes have the power of sending
their serfs ^ ^ and farmers into servitude, as
parents have the power of sending their children.
Master and slaves
So in the case of Kii Shih-k'uei StftS:'
wherein a farmer had mortgaged his farm, and
when his lord sold it, put all sorts of obstacles
in the wa)' of the conveyance (H. A. H. L. Siipp.
vol. II. p. 59). Dukes would also appear to
have the same privilege — to judge from a case
wherein a serf had charge of his lord's wardrobe,
and stole and pawned his handkerchiefs, socks
and undergarments (H. A. H. L. Supp. vol. II.
p. 60).
The question of slaver)' and birth is dealt
with incidentally.
A slave who deliberately kills, or who deliberately
strikes so as to kill, his master incurs the penalty
of the slow process. A slave who accidentally
kills his master incurs strangulation subject to
revision. A slave should, moreover, be sparing
in his corporal attentions in regard of his master's
relations to the fourth degree.
If a slave merely draws a knife on his master,
the latter or any near relation of his f;S, Mlfi ^ _ll '
may kill the slave without any consequences
II. A. H. L. vol. XXXIX. p. 53). On the
other hand, to delib(:ratc]\ kill a .slave is visited
MASTER AND SLAVES 21 3
with strangulation ; and to kill a slave of a distant
relation, without actuall)- meaning it, is visited
with transportation — as is also so to kill the
children of such a slave. Further in regard of
the slaves of relations, it may be incidentally
mentioned that the penalty for killing or striking
such a slave varies with the nature and nearness
of the relationship, and further the nature of the
wound. So to strike the slave of a relation in
the third or fourth degree, occasioning injury
more serious than a cutting wound, entails two
degrees less than the ordinary penalty : and to
strike the slave of a relation in the third or
fourth degree, without causing a cutting wound,
incurs no penalt)-. To deliberately kill a slave
who has purchased his freedom is naturally
somewhat serious, and all that the slayer can
then claim is, that he, a gentleman, killed an
inferior being ; and this, even, cannot be claimed
in respect of so killing the children of such a
person — as in a case where the slain person's
grandfather had been given his freedom.
A slave ma}' not bring charges against his
master, under heavy penalties (H. A. H. L, vol.
214 MASTER ANU SLAVES
XLX'III. p. Sy): and even if the charge be
true, b)- a decree of the thirteenth year of Yiinor
Ching — a decree never to be repealed — a
slave who takes it on himself to denounce his
master is to be severeh' dealt with, as the law
directs in M M fi '/p S P (H. A. H. L. vol.
XL VIII. p. 86). If a slave has been set free,
before he brings the charge, he will still be
liable to punishment — though in a less degree :
and even the children of such a person to the
third generation owe duty to their master.
As regards the duration of the tie ; if a slave
be sold, he becomes a stranger in his former
master's house, but, if he becomes a freeman,
either b)- redeeming his liberty, or by being
given it, his relations to his old lord will continue —
and so he may not strike him, or flirt with his
wife ; and if the tables are turned, his old master
will get the benefit of the statute.
A slave's wife follows her husband's status if
she lives with him in his master's house, but
not if she makes her living outside (P. A. S. P.
vol. XXII. J). 5). Thus, in a case where the
wife of a convict slave was killed by the slave's
WET-NURSE AND CHILD
215
mistress, the wife having for some years lived
with the convict in the house of the bannerman
to whom he had been assigned. For this the
lady was sentenced to the equivalent of two
year's transportation — i. c. one hundred cuts with
a whip, redeemable, as she was a woman, by
a fine.
WET-NURSE AND CHILD
It is desirable to append a few words on
this — an artificial relation of an entirely one-sided
nature. By the old law, if a wet-nurse overlaid
her child and killed it, she was simply sentenced
to penal servitude ; but as it was found that the
women had a way of doing so intentionally, in
order to free themselves to undertake a second
affair, it was made lingering death, if the child
was killed intentionally, and strangulation if done
unintentionally. The sentence was not, however,
of necessity carried out; but by 55. Ch'ien Lung —
Edict — it was decreed that if the child was
an only one, though the death was caused
accidentally, the nurse's name should be included
among those whose sentence merited being
2l6 WKT-NrUSK AND CHILD
carried out : if the child was not an only one,
the sentence should in due course be commuted,
and would aniount to a term of imprisonment
and fine (H. A. H. L. vol. XXXIX. p. 72). It
is essential that the woman should have been
hired to nurse the child for tlie relation to hold
(H. A. H. L. vol. XXXIX. p. 69). Nor is it
only in killing cases that the nurse will suffer
severely — as she will find to her cost if the
child be injured ever so slightly.
PART III
SPECIFIC OFFENCES
SPECIFIC OFFENCES.
INTRODUCTORY
DIVISION OF OFFENDERS AND OFFENCES
Offenders are of two chief classes, 'ordinary
'offenders' ^ ^j^, or diose guilty of offences
against the Individual, and 'official offenders' g
^li 1 or those guilty of offences against the State.
As regards the Chinese division of offences,
ten heinous offences styled the Ten Felonies "p
^ are distinguished by the law from other
offences by reason of their extreme gravity.
These are the two treasonable offences of rebellion
and disloyalty, together with sedition, parricide
etc., murder of three or more of a family etc.,
sacrilege, impiety, discord, incest, insubordination.
These and all other offences are treated under
SPECIFIC OFFENCES INTRODUCTORY
the appropriate clause in the Code — e. g. treason,
sacrilege, rebellion, highway robbery, robbing in
open da)-, murder, killing an adulterer, assault
between those on an equal footing and in general,
unlawful and false imprisonment etc. etc. Inasmuch,
however, as man\- strict offences against the State
are in realit}- merel\- ordinary offences subject
to certain special considerations; and further,
inasmuch as beyond the Ten Felonies there are
considerations of aggravation which may render
other offences equally severely punishable therewith -,
and lastly, inasmuch as the arrangement of offences
in the Code, however lucid originall)% has suffered
somewhat from aofe and constant additions to
clauses by strained and perhaps somewhat irrelevant
interpretations — an arrangement not unfamiliar
to an English reader has been adopted.
CHAPTER VI
OFFENCES AGAINST THE PERSON —
HOMICIDE
SECTION I GENERAL CONSIDERATION
GENERAL CONSIDERATION
De Ouincey has the credit of originating the
idea that murder is one of the fine arts, and
advocating its practice as the most pleasurable
of pursuits ; but we have to turn to Chinese law
to fully appreciate the infinite variety of which
the crime is capable, and the nice distinctions
that can be drawn between the different kinds
of killing — withal, most erratically classified.
The subject is vast. In starting, the word ska ^ ,
to kill, is extremely comprehensive. Doing anything
sufficient to cause the death of another is termed
killing him. Thus, it is killincr a man if he dies
from his wounds, or is drowned running away
from another, or falls down and gets a mortal
hurt struggling with another, or where one forces
another to commit suicide. And between the
222 GENERAL CONSIDERATION
various kinds of killine the most careful distinctions
are drawn. There is killing with malice afore-thought,
killing with intent, killing in the course of a fight,
killing a man intending to kill someone else,
killing a man in larking with him, killing a man
by accident, killing a man in self-defence — and
volumes might indeed have been written in regard
of each. Then there is killing a trespasser —
distinction being- drawn as to the nature of the
trespass : killing a person who enters one's house
by night without just cause, or who commits
robbery in the said house by day : killing a
highway robber, or a person who commits a
robbery in one's field by day or by night. Again
distinction is drawn between killinpf a robber in
the house, or in pursuit, or after he has been
knocked down, or after he has been captured ;
and whether or not the robber offered resistance
is also matter for consideration. Then there is
the varying gravity of the offence depending on
the relationship of the person killed. Thus there
is the awful crime of killing one's parents, or
one's grandparents, or one's mother-in-law or her
husband : and the lesser but still heinous offence
GENERAL CONSIDERATION 223
of killing one's uncle, or aunt, or elder brother,
or any of one's seniors : and the comparatively
mild offence of killing one's wife or younger
brother : and, what in many cases is no offence at
all — the killinof of one's children or erandchildren,
their wives, etc. Then, again, in another class,
the crime changes with the respective position,
or artificial relationship, of the parties. Thus,
there is killing a policeman, or a commanding
officer, or a magistrate, or a master, or a tutor,
etc. : and, conversely, there is the killing of a
person by one who has been sent to arrest him,
in the act of arresting him, or after he has
been arrested : the killing of soldiers by one in
command : the killing of offenders by the person
trying them — and here it is important to
determine whether the offenders were really
guilty of a capital crime, and whether the case
was tried accordingf to law. Furthermore distinction
is drawn as to the manner of killing. Thus the
dead person may have been stripped and left
to die from exposure ; or he may have been
kicked in the stomach ; or, perchance, beaten to
death with a broom handle, or a hammer, or a
224 GENERAL CONSIDERATION
Stool. Perhaps strangulation ma)' have been
adopted — and this either with the hands, or
with a rope , or with a convenient sash.
Perhaps the eyes have been gouged out,
or the fatal damagfe has been done with the
talons — in the peculiar Chinese mode. Perhaps
a chopper or other domestic implement has
been requisitioned. Curious to say, to stab or
chop a man to death is not so serious as to
gouge out the eyes with mortal effect. To
shoot the victim is not uncommon (the law
however discouraging the use of firearms), nor
is poisoning (as to which there are special laws),
nor is burning to death (arson being an aggravation).
To bite a person to death is considered a mild
form of murder; and to bury a man alive is not
regarded with the most extreme disapproval —
for indeed it was originally devised as a method
of disposing of a person, without actuall)' incurring
the responsibility of taking his life, though latterly
the law has regarded it as killing. Then there
is indirect killing. The victim may have been
dunned ^ gij" to death by the continual
presentation of a small account ; he ma\- have
GENERAL CONSIDERATION KILLING SEVERAL OF A FAMILY 225
been rolled into the river : he may have been
accidentally pushed into a pond out of which the
pusher refrains from helping him.
In conclusion, however, though there are all
these divisions, sub-divisions and distinctions in
the offence, he who turns to the exposition of
the Chinese law of homicide, as it is set forth
in the Code, will be singularly disappointed —
for the exposition therein is not remarkably full,
and the classification is simply misleading. The
truth is, that in this matter, as in other considerations
of Chinese Law, concentration — in our sense —
has not been attempted ; relationship has been, on
the whole, too powerful a force ; and considerations
of homicide — independently of the small area set
apart for them — appear first in one section, and
then in another, throughout the Code.
Killing several of a family. — There is also
another consideration, which arises when two or
more persons of the same family are killed.
This, as the reader has already gathered, is
one of the most serious of offences — and much
more so than killing the same, or even a greater,
number of individuals not related to one another.
C. E. G. 15
226 GENERAL CONSIDERATION — KILLING SEVERAL OV A FAMILY
In the case of killing two or more persons not
related to one another, each offence is properly
dealt with separately, and the offender tried for
one onl}- ; but to kill two or more persons of
the same family is dealt with as one offence
(H. A. H. L. vol. XLIV. p. 59). So if a person
kill three members of the same family, the slayer
himself will suffer the lingering death, his property
will be confiscated, and the wife and children
involved in the offence. It is essential that the
persons killed should be on the same footing as
the slayer ^ A ^ T A , and if one of the
victims was a man who might justifiably, or
ought to be killed, the law does not apply.
Such might occur in a fray, where the prisoner
first killed one member of a family, and then
chanced to kill another ; as in the case of Chang
Yiian-shih 5ft 7U it , where the prisoner was tried
for killing a father and his son — the first
being killed b)- the prisoner in rescuing a step-
mother, and the second in his own personal
self-defence. The Board held that the prisoner
should be sentenced on the latter count only
(H. A. H. L. vol. XLIV. p. 97).
GENERAL CONSIDERATION — KILLING SEVERAL OF A FAMILY 227
The question is occasionally one of great
delicacy and nicety. For instance in a case where
the persons killed were a husband and his wife
(a naughty woman), and the latter was killed
first, the slayer was adjudged decapitation,
exposure of the head, and forfeiture of half his
property : on the other hand had the slayer
used some discretion, and slain the parties in
the reverse order, he would have been merely
decapitated — for under these circumstances
the woman would have been a criminal (H. A.
H. L. vol. XXVIII. p. 13).
If the parties on both sides are equally
worthy to be killed, and so on the same footing,
the law of course applies, but decapitation only
inflicted on the slayer.
If the offence of the persons killed was due
to the slayer, lingering death will be inflicted
on the slayer — but his property will not be
confiscated, nor his family involved. So in the
case of Wei Lao-han $ :^ '^ , who killed an
old woman with the aid of the latter 's relatives ;
the object being to extort money from a third
party, by depositing the corpse upon the said
228 GENERAL CONSIDERATION KILLING SEVERAL OF A FAMILY
party's property — the whole matter being
arranged by Wei. The affair being satisfactorily
accomplished, and the mone)- duly extorted, the
prisoner saw fit to appropriate the money
himself. To this the confederates raised many
objections, and even threatened the prisoner;
whereupon the latter, with the aid of his sons,
straightway killed his associates, to stop their
mouths jj^ P . The prisoner was sentenced to
lingering death without more, and the sons of
the prisoner, for killing persons whom the)' had
no business to kill ^ ^NJ ^11 # )9f iS 1^ '^
— though persons, as the Board remarked,
deserving of death — were sentenced , as
accessories, to strangulation subject to the Autumnal
Revision.
It is noteworthy that distinction has been
drawn in this class of cases between one who
premeditatedly or deliberately commits homicide,
and one who does so merely in trying to escape
arrest — some mitiofation beino- allowed in the
latter case ; as in an instance wherein the offender
killed three of a famil)- who sought to arrest
him for stealing ; confiscation of his property being
GENERAL CONSIDERATION — LIMIT OF TIME 229
remitted, as also the liability of his famil)- for
his offence.
The relations that are within the meaning of
the statute are held to be, all those within the
five degrees of relationship, all relations living
together and holding property in common, all
members of a household, servants, and slaves.
Two partners in business 1^ ^ © ^ may
also be so considered (H. A. H. L. vol. XXVIII.
p. i). On the other hand, members of the
same clan merely, who do not live together —
and though bearing the same name — are not
so considered, save under exceptional conditions.
So in the case of an adulterer who killed three
such persons in trying to escape, and became
thereby legally liable to strangulation simply.
Held by the Board that strangulation was
inadequate, and that instant decapitation be
adjudged.
Limit of Time. — Where death occurs not
at the time of, but subsequently to, an injury,
certain limits of time have been fixed for the
purpose of regulating the responsibility of the
doer of the injury — both as touching the penalt)',
230 GENERAL CONSIDERATION LIMIT OF TIME
and the time during which medical aid must be
provided. The limits differ according to the
nature of the injur}-, the manner in which
inflicted, the subsequent cause of death, the
class of offence in the first instance, and the
chronic consideration of relationship.
Firstl}', in the case of an injur}- of itself the
direct cause of death, and without consideration
of relationship. The limit where the wound was
inflicted with a stick, or the hands, or feet, or
any non-lethal weapon, is twenty days : if with
a cutting instrument, thirty days : and, in either
case, if a bone be broken, or the victim be a
woman or a child, fifty days. Again, if within
a further limit of ten days, in ordinary cases,
or tw^enty da}s, if a bone be broken, the wound
proves fatal, the offender will still be held
responsible, and sentenced capitally, but will be
recommended to mere}-. It is to be noted, that
if a soldier wounds a man with the handle or
back of his sword, it is not considered wounding
with a cutting instrument [cf. case of Lu Ku @ O
P. A. S. P. vol. XIX. p. 19, where the wound
was inflicted with the back (A a chopper).
GENERAL CONSIDERATION — LIMIT OF TIME 23 1
Where the death occurred not from the very
injury itself, but from disease supervening on
the injury, the above limits of time regulate
the responsibility, but the punishment varies
according as the wound was in the first instance
serious or trifling. So, if the wound be serious
or ordinarily dangerous, the capital sentence
will be imposed — apparently irrespective of the
victim's contributory carelessness ; as in the case
of Liang Ming-an ^ 5^ ^ , wherein the deceased
had been wounded in the throat, but was
recovering, when carelessly washing his face,
he caught cold, and, inflammation supervening,
died (P. A. S. P. vol. XIX. p. 14). On the
other hand, if the wound be trifling, servitude
for life will be the penalty — and this, again,
apparently irrespective of the victim's own
carelessness. So a man had a tussle with a
cousin, and therein received a slight wound in
the foot by stumbling over a tile ; the sufferer
washing his hurt — an extremely careless thing
to do, the report remarks — erysipelas set in
with fatal effect. For this the cousin was held
responsible, and sentenced to servitude for life
232 GENERAL CONSIDERATION — LIMIT OF TIME
three thousand li from his native place (P. A.
S. P. vol. XI. p. 46). Where the injury was
serious, but the cause of death was not disease,
but merely bedsores, the penalty of transportation
for life has been adjudged {v. case of Ho
Kuo-erh f^% "^ H. A. H. L. vol. II. p. 57).
Where the prescribed limit of time has been
exceeded, even if the death followed directly from
the wound, the offender will ordinaril)' only be
punished for wounding- {v. case of Shih Li 6fll /Is
P. A. S. P. vol. XIX. p. 24). But not so
where the circumstances were such as to point
to deliberate murder, or where the injuries were
inflicted by a robber or a ravisher in resisting
arrest (H. A. H. L. vol. XXXVII. p. 65).
Where relationship operates, the limit of time
is subordinated to the nature and decree of the
relationship — the responsibility is apparently a
continuing one, and the efficacy of tl:e time
limit is its effect on the penalty. If the relationship
be near, and death occur within the prescribed
limit, the penalty is heavy. So in the case of
Chu Hua-nien :^ ^ ^ the victim was a first
and seni(jr cousin, and the penalty a commulcd
GENERAL CONSIDERATION — LIMIT OF TIME 233
sentence of decapitation subject to the Autumn
Revision (H. A. H. L. vol XLl. p. 38). The
circumstances were that the offender asked his
cousin to repay him a debt ; the cousin thereon
abused the offender, struck him, and even butted
him in the stomach. In his efforts, the cousin
knocked his head against an earthenware teapot
the prisoner was carrying, and hurt himself —
though not seriously. Catching cold, however, in
the wound, he died twenty-one days afterwards. In
this case, on the one side, was senior relationship
of near degree, but, on the other, as extenuation,
undoubted provocation and accident — hence
the commutation. If the relationship be more
remote, and the period exceeded, the penalty
is lighter — usually servitude or transportation.
Two edicts of the twenty-third and thirty-first
year of Ch'ien Lung provided that if the relationship
be only of the fourth degree, if death occur
beyond the limit, the offender should be sentenced
to servitude for life in a penal settlement ; as
in the case of Ping T'ien-ming |?>J ^ ^ '
wherein the offender bit his third cousin's thumb,
which subsequently festered, and caused death
1
234 GENERAL CONSIDERATION EFFECT OF USING FIRE-ARMS
(P. A. S. P. vol. XIX. p. 20). And in the
case of Li Ho ^ ^ , where a remote senior
was the victim, transportation was adjudged
(H. A. H. L. vol. XLI. p. 38).
Effect of using Fire-arms. — So great is the
objection to fire-arms, that in cases where persons
are shot unintentionally, mitigation which would
be allowed in other cases, is not only denied,
but the offender will most generally be sentenced
to decapitation — and not simply to strangulation.
The only cases where mitigation is allowed, is
where a person is carrying a gun, and it goes
off consequent on his being struck or falling as
he runs away. Thus, in the case of Cheng
Yii-tsai p|5 PS ^^ , the mitigation to strangulation
was disallowed, although it was admitted that
the offender had no intention of firino- the eun —
which exploded as he was using it to ward off
a blow from a hoe (H. A. H. L. vol. XLIV.
p. 87). And in the case of Wang Tzii-ch'ing
j£ -^ ^ , no representation was allowed to be
made in the offender's favour, although it was
admitted that the gun went off by accident,
while he was prodding a man who was assailing
GENERAL CONSIDERATION — EFFECT OF USING FIRE-ARMS 235
his father with it, and that he would under
ordinary circumstances have had his sentence
commuted as of course (H. A. H. L. vol. XLIV.
p. 88). And so again in the case of Chang
Sheng-hsiang ^ ^ ^ , wherein a man shot
another who had grot his mother down in a wet
paddy field — although it was admitted that
the old lady was in danger of her life, and
that the offender fired the shot under stress of
circumstances which would otherwise have secured
acquittal. In consequence of this latter case, the
law on the point was clearly laid down in a
decree, in which His Majesty said that in all
cases where a person shoots another, excepting
only where the gun explodes consequent upon
the aforesaid person being struck or falling in
running away, the homicide shall be treated as
intentional, and the sentence must be that
prescribed by law — decapitation subject to
revision: nay more, the offender's name may
not be entered upon the list of Cases Reserved,
and the only grace possible may be that His
Majesty may not for the usual three years tick
off the name for execution, and at the end of
236 JUSTIFIABLE HOMICIDE
that period, the case may be considered, and
the sentence uiay be commuted (H. A. H. L.
vol. XLIV. p. 84).
SECTION II JUSTIFIABLE HOMICIDE
JUSTIFIABLE HOMICIDE
The question commonly arises where one person
kills another committing an offence, and furthermore
by reason of the relative position of the parties
— and firstly as to the former.
As regards robbery etc., if a robber enters
a house at night, and the owner thereof kills
him on the spot, it is no offence : nor is it if
the robber, be armed and resist arrest putting
the said house-owner in peril : nor is it blameworthy
to kill the robber (if he be armed) in warding
off a blow. Again it is a comparatively light
offence, punishable with one hundred blows and
tliree years transportation, for a house-owner to
kill a robber who tmters his house durinu;^ the
JUSTIFIABLE HOMICIDE 237
daytime^ or robs his yard during the night (and
this whether the robber is still on the premises
or not). In no case, however, must a person
keep on beating a robber (who dies therefrom),
after he has been knocked down, or has been
captured, or after the aforesaid person has had
time to collect his senses, and the robber makes
no resistance (H. A. H. L. vol. XXI. pp. 70 — 2) ;
and though there may be reason to believe
that the fatal blow was griven before the man
was knocked down, it is always to be considered
a grave offence, where a person being in a
position to hand over a robber to the police,
dispenses summary justice on his own account
(H. A. H. L. vol. XXI. p. 62) ; and to invoke
others to do so, in no way diminishes the gravity
of the offence. It is not a capital offence, if
the fatal blow was oriven before the thief was
hors de combat (H. A. H. L. vol. XXI. p. 63).
It is not justifiable to kill a person who is
robbing one's field by day — on the contrary,
it is punishable capitally. Thus it is unjustifiable
for the owner to kill one who is robbing his
standing crops by day (and this whether there
238 JUSTIFIABLE HOMICIDE
is anyone on the look out or not), and the
case will be considered one of unauthorised killing
an offender ffi ^ |p A (H. A. H. L. vol.
XXI. p. 64). Unauthorised killing is however less
serious than to kill without any business ^ ^
//is ^5^ yf^ •
To kill a person who is robbing one's field
by night, if done on the spot, is in a measure
justifiable however ; as in the case of Weng
Liu-kou ^ :aV ?^ 1 who was acquitted of the
capital charge, and simply sentenced to
transportation, for knocking down and killing a
person he caught taking a pear outside his
wall (H. A. H. L. vol. XXI. p. 71).
It is quite justifiable to kill a robber in self-
defence. But it must be in self-defence. So in
a case where some robbers, pretending that the
owner of the house was a thief, raised a hue
and cry — and the owner meeting them with a
spear, killed one and wounded another. This
was not self-defence. And aeain where four
young fellows killed an old woman who had
lost her way in the dark — taking her for one
who had already robbed them and escaped.
JUSTIFIABLE HOMICIDE 239
This was not self-defence — for the young fellows
were in quite sufficient force to capture the old
crone, and to kill her was quite unnecessary (v. also
P. A. S. P. vol. XXXI. p. 26). And to kill a robber
who is abusive is not self-defence (P. A. S. P. vol.
XXXI. p. 30) — abuse can be returned. The question
also not uncommonly arises where it is sought to
arrest an offender who rounds on his would be captors.
If the offender be killed as a measure of self-defence,
sudden and unavoidable, the killing is justifiable —
but not otherwise (H. A. H. L. vol. XXI. p. 66).
It is — by way of recapitulation — laid down
in general terms, that in cases of larceny and
homicide, the person who kills the offender must
prove that the latter resisted him and hurt him,
or else the case will merely be placed on the
list of Cases Reserved (H. A. H. L. vol. II. p. 22).
What has been said as regards robbers, applies
also to mere trespassers. If a person enters a
house in the night, and the master thereof, in
his flurry, shoots him, it will be considered
justifiable : and even if the master shoots the
trespasser after he has had time to think, the
act will be considered in a measure justifiable —
240 JUSTIFIABLE HOMICIDE
the penalty to be as before : but it is punishable
as killing with intent if the master first deliberates,
then threatens the use of fire-arms, and in the
interA'^al the gun accidentally goes off — as in
the case of Ku Ssvi-ts'ai "^ .@» ^ (H. A. H.
L. vol. XXX. p. 48). And the above rules
extend also to lunatics (H. A. H. L. vol. XXI.
p. 45) — but only if they actually have improper
designs, and not merely because the slayer was
under the impression that they had them (H.
A. H. L. vol. XXI. p. 46). A person other
than the master will be sentenced to stranofulation
subject to revision for killing a trespasser.
It is justifiable to resist with fatal effect acts
endangering the property of the person resisting —
as, e.^., the breaking of a dyke (see also later).
If a band of men attack a house and set
fire to the out-buildings, it is practically justifiable
for the master to cut down a fellow in the act
— the penalty being one hundred blows only.
And to kill such a ruffian in self-defence is
justifiable {v. case of Hsi Ta-kuo ^ j^ ® , P- A.
S. P. vol. XXXI. p. 19).
To kill a smuggler in truth engaged in the
JUSTIFIABLE HOMICIDE 24 1
exercise of his profession is not exactly justifiable,
but nearly so — being regarded as killing an
offender without due warrant. If the man was
not in fact smuggling, the act would be in no
measure justifiable.
To kill a person engaged in committing an
act detrimental to the community at large, or
to the State as representing the community, is
justifiable. So in a case where a person attempted
to prevent a dyke being broken down by firing
at the scoundrels doing it. He failed to prevent
them, and the dyke was cut — with the consequence
of the whole country side being flooded and
four lives lost. He had however killed two men,
and as killing with fire-arms — whether intentional
or not — is looked upon as intentional homicide,
the slayer was sentenced to decapitation, but on
special representation was granted a free pardon.
It is justifiable in a measure to kill a person
who is desecrating the grave of the slayer's
father.
A very large number of cases of justifiable
homicide arise in connection with impropriety.
Mitiofation is allowed as of course where the
C. E. G. 16
242 JUSTIFIABLE HOMICIDE
homicide took place durinij the course of resisting
an attempt on virtue. In the case of a virgin,
the killing would be considered justifiable ; in
the case of a naughty woman who has repented
her sins partially so only — she being sentenced to
one hundred blows and a fine. If, however, the
woman refused the advances of her old lover
simply because his purse was exhausted, or
because she had taken a fancy to some-one
else — then, if she killed him, she will be
guilty of murder in the first, second, or third
degree, according to circumstances. And so with
a more disgusting offence, if a youth, whose
chastity is threatened, kills a would-be ravisher
ten years older than himself, he will practically
be justified — that is will receive a capital penalty
commutable as of course by steps to fine. But
the other must be ten years older, and the
youth must be an innocent. So in the case of
Sun Shuang-hsi ^ '^ S i wherein a boy resisting
his attacker, stabbed the latter with his own
knife, which the little fellow had wrested from
him. The ruffian died, but as the boy had
been naughty on a previous occasion, with perfect
JUSTIFIABLE HOMICIDE 243
self-approval, the Board insisted upon a capital
sentence being carried out (P. A. S. P. App. III).
Secondly as to justifiable homicide arising out
of relationship [v. also RelationsJiip).
Careful as the Chinese are of human life,
they will not hold a parent capitally liable for
the murder of his offspring : on the contrary,
the action is regarded as justifiable homicide —
i. e.^ completely justifiable in some cases, partially
so only in others. So in the case of T'ien Hung-lin
0 /jlT '^ , who burned alive his son and two
grandchildren, and who being sentenced to death
for the destruction of one child only, was finally
let off with sixty blows and one year's hard
labour — although the killing was brought in
as with intent (H. A. H. L. vol. XII. p. 3).
And a brute who beat to death a blind orirl
that he had adopted, because she would not
learn to sing, escaped with ninety blows and
two years — and this although as she had
only lived with him two months, it was dealt
with as a case of beatine a servant to death
(H. A. H. L. vol. XII. p. 2).
In the case of Ho Chin-li ^^ ^ ;|s , a father
244 JUSTIFIABLE HOMICIDE
Strangled his daughter , aged nine , for. illicit
behaviour in a stable with a boy aged fifteen.
Some one else, and not the father, detected
the culprits — but the retribution was considered
comparatively justified, and the father sentenced
to one hundred blows (H. A. H. L. vol. LII. p. 8).
In another case, a mother was held perfectly
justified in beating her son to death, because in
defending himself from his father who had attacked
him with a club, he had happened to kill his
parent — the act being considered to fall under
the statute that a parent is not to be called to
account for killing his offspring, if they venture
to strike him (H. A. H. L. Supp. vol. XII. p. 2).
And an uncle who beat to death a nephew
once removed, for tearing up the portrait of his
great-grandfather, and pitching his bust into the
dust heap, was only given one hundred blows.
A parent who accidentally kills his child incurs
no penalty [id.).
In the protection of a child's life, a parent is
considered partially justified, and mitigation allowed
him according to the nature of the attempt upon
the child. Thus, if the killing be consequent on
JUSTIFIABLE HOMICIDE 245
an assault, the death penalty will be commuted
to one hundred blows and transportation for life
to a distance of 3000 //: if consequent on a
deliberate attempt to murder, the death penalty
will be commuted to military servitude on the
frontiers — and if in such case two of a family
are killed, to servitude in the desert, and if
over two of the same family, to strangulation
execution deferred. If the person killed be a
relative, the sentence will be commuted, or not,
as the case may be, according as he was a
senior or a junior of the slayer's family (H. A.
H. L. vol. XXXII. p. 2). If the killing be
consequent on an attack on the propriety of the
child, the parent will be sentejiced to strangulation
(H. A. H. L. vol. VIII. p. 28).
In the protection of a child's propriety, a parent
may justifiably kill, subject to the circumstances
of the case : but it is not entirely justifiable to
kill the mere abductor of your favourite daughter,
though by night, and the villain was knocked
on the head in a scrimmage (H. A. H. L. vol.
IX. p. 10): and a parent may not kill one who
makes improper advances to his children, whether
246 JUSTIFIABLE HOMICIDE
at the time, or afterwards, although the sentence
of death will, as a matter of course, be commuted
(H. A. H. L. vol. VIII. p. 28).
As regards the protection of parents by their
children. It is completely justifiable for a child
to kill the murderer of his parents, if the killing
take place then and there, and as a result of
natural and proper anger, necessarily arising
from the attack upon them, or in their actual
defence — and this though the murdered party be
a relation , for the law recognises natural feelings.
As reofards the killing- of a would-be murderer
in defence of the parents, the child is considered
partially justified (subject to the limitations noted
below), in that the capital sentence is commuted
to transportation for life. To be so partially
justified, the parent's life must have been actually
in danger, or the son must have had reasonable
ground for thinking so, and the fatal act must
have been done on the spur of the moment.
So, if in running to the rescue of his parents,
a son chances in his haste to slay the assailant,
he may plead that they were in danger of injury
to life or limb, and when the capital sentence is
JUSTIFIABLE HOMICIDE 247
presented for revision, note will be made that
the offender is entitled to have the sentence
commuted to transportation for life.
As regards what is sufficient justification for
interference, the two cases of Ts'ai Ch'uan-chi
W:"^ ^ and Wang Hua-yi J ^ — • are in
point ; in the former the parent was on the
ground, and calling out lustily for help, and it
appeared, furthermore, that the man killed had
his fist raised to hit her — held, sufficient
justification : in the latter case the supposed
endangered parent had not even asked for help,
being of opinion that he was quite equal to
the assailant — held, no justification. It would
seem that there must be battery threatened
(H. A. H. L. vol. XLIV. p. 80).
Moreover the connection between cause and
effect must be very evident and direct. So in
the case of Ho Pen-ju ^ 2fC "^ , the deceased
had first attempted to seduce the slayer's mother,
and had subsequently attacked her, but on its
being shown that the slayer had merely abused
the deceased for insulting his mother, and that
the fatal blow had been struck after the deceased
248 JUSTlFlAliLE HOMICIDE
had let her go, and during the fight that ensued
thereon, the offender was held rightly sentenced
to death (H. A. H. L. vol. XLV. p. 9).
On the other hand, provided there be satisfactory
and direct cause for interference, considerable
latitude will be allowed the son as to the manner
thereof; as in the case of Lung Shao-tsung ^|
^ :^ , wherein the man killed was beating the
parent at the time — and the son used a knife
(H. A. H. L. vol. XLIV. p. 79); and in the
case of M'^ Ch'ao nee Ch'ao ^ ^ .^ , wherein
the son inflicted other wounds (though not fatal
ones) upon the attacker after the latter had
been knocked down (H. A. H. L. vol. XLIV.
p. 78). And even where the person killed was
not the man who had inflicted the injuries which
excited the apprehension of the slayer — the latter,
if he has used a knife, a pair of scissors, a hoe,
or a rolling-pin, will be partially justified : but
if a sword or a spear has been used military
servitude will be imposed instead of transportation
(H. A. H. L. vol. XLIV. p. 74 et scq.) : and
if fire-arms, no allowance whatever will be made
(H. A. H. L. vol. XLIV. p. 81) — a provision.
JUSTIFIABLE HOMOCIDE 249
it may be remarked, extending to all cases of
self-defence, save those where the attacking party
is similarly armed.
And partial justification to some extent may
be allowed also where two of a family have
been killed — the capital sentence being subjected
to revision (H. A. H. L. vol. XLIV. p. 54).
On the other hand, it is not considered
partially justifiable to kill in a parent's defence
where the father was in no danger ; as in the
case of Hsii Lung-te f/jt HI ^ , convicted of
wounding with a lethal weapon, though in defence
of his father — it beingf held that the assailant
was merely pulling the father about (H. A. H.
L. vol. XLIV. p. 76). Again, in another instance,
a son tripped up an assailant, declaring that he
purposed tying him up and handing him over
to the authorities — but, by tripping the fellow
up, he killed him, and on trial therefor it was
held that he was not justified in thinking his
father's life in danger, and no mitigation could
be allowed (H. A. H. L. vol. XLIV. p. 81).
Nor is it partially justifiable, if the slayer be a
party to the fray (H. A. H. L. vol. XLIV. p.
250 JUSTIFIABLE HOMICIDE
52). Nor is it partially justifiable to kill the
assailant after he has been disarmed ; as in the
two cases of Ho Ho-shang $*|^ ^ M , and Kuo
Ch'i-feng JB ife f$ , wherein there was no question
but that the two criminals had interfered to rescue
their parents, but it appeared that they had
killed their opponents' with a stool and a rolling-
pin respectively after the said implements had
been wrested from them (H. A. H. L. vol.
XLIV. p. 75).
Moreover, the position of the assailant, and
his condition physical and mental, are exceptional
considerations, counteracting any justification ; as
in the case of Jen Tzii-wang fi "T* ^ » wherein
it was held to be unjustifiable to kill a drunken
creditor who tried with the utmost violence to
take liberties with the slayer's mother (P. A. S.
P. vol. XXX. p. 41).
Nor (contrary to the case of an actual murderer)
if the slain assailant was a relation, will the
ordinary rules apply. If the relationship be distant,
the act will be comparatively justifiable ; if the
relationship be near the act will (practically) be
in no measure justifiable. So, if the slain assailant
JUSTIFIABLE HOMICIDE 25 I
was an uncle, the only mitigation possible is
that representation may be made to His Imperial
Majesty, by virtue of which (if His Majesty
sees fit) the execution may be postponed.
Next with the relation of husband and wife.
A husband may QDractically) justifiably kill his
adulterous wife on the spot, if he catch her
in flagrante delicto — escaping with eighty
blows: and the lover will be held capitally liable.
But, if (notwithstanding that she is caught in
the act) the husband kills her days after, and
though there be proof to support him, he will
be sentenced to three years transportation —
Don Juan receiving the same. If however the
delay was merely due to the wife's escaping
from her justly irate husband, the latter will be
more or less justified, receiving one hundred
blows only — and Don Juan will be sentenced
to transportation for life. As for the lover, it
appears that the husband may also justifiably
kill him, escaping even a flogging, if he do so
on the spot, and at the time ^ )9f :S ^ ^
5E ^ ^ it (H. A. H. L. vol. XXV. p. 16).
And if the husband, following the offender, kills
2 52 JUSTIFIABLE HOMICIDE
him after he gets away, it is practically justifiable —
a flogging merely iU ^ ^ Q^^)9f$^
s Bi ji s PI ^h ^ ^ * f+ « T> ffi a
^% {id.). And if the husband, catching him in the
act, kills him next day, or sometime afterwards,
the penalty is one hundred blows and three years'
transportation J^^)9fS^#SB$ffJi^
^#tt — W^H^ {ul). But if the husband
did not catch him on the spot and at the time,
and kills him next clay, or sometime afterwards, it
is killing a trespasser without authority, and the
husband will be sentenced to strangulation, subject
always to revision ^ ^ X # S Bf ffi fi ^
tP A# ^ ^ ^ f|(^>/.).Ifdie husband, without
killing the adulterer, merely breaks every bone
in his body, he will escape the penalty in the
second case given, and in the third and fourth cases,
receive a reduced penalty.
Relatives may justifiably assist the offended
husband on the spot and at the time.
On the construction of this latter phrase points
frequently arise. So in a case where a lover
JUSTIFIABLE HOMICIDE 253
was tied up first, and subsequently, because he
became abusive, his eye was gouged out. Here,
the Governor was of opinion that this was not
a case for justification ; but the Board on the
ground that there had been no break in the
intentions of the husband, insisted to the contrary.
And in the case of Ching Chiu Kuei Wa ^
^ M* ii 1 it was laid down that tying the man
up after the fatal injuries had been inflicted did
not affect the point (though possibly he would
not have died had his hurts been attended to
— H. A. H. L. vol. XXV. p. 59). In the
case of Ou Mei-ch'eng ISt j^ >^ , although
more than twelve hours had elapsed between
the discovery and the killing, the Board yet
considered the latter had been done on the
spot : — /. e. inasmuch as the husband caught the
man under the bed in the first instance, and
although it took him all night to catch his wife,
tie her up, take her to her lover's house, tie
him up too, and throw the pair into the river,
it appeared that he had never swerved from his
idea of killing them in his righteous wrath (H.
A. H. L. vol. XXV. p. i). And, in the case
254 JUSTIFIABLE HOMICIDE
of Fenor Chi-yiian ^i^ ^ VTC , the Board held
that it was clearly a case on the spot etc.,
althouoh the man did not kill his wife until he
came back from chasing her lover (H. A. H. L.
vol. XXV. p. 2). On the other hand, it is
held that if the avenger does not kill the wife
when he first discovers her misconduct and only
does so when he catches her repeating her
offence, his act will not be justifiable (H. A. H.
L. vol. XXV. p. 3). Moreover, if the husband
after a sojourn abroad, returns and finds his
wife enceinte^ and indignant thereat kills her, he
will not be entirely justified — his finding her in
such a condition was only tantamount to hearing
that she had misbehaved herself (H. A. H. L.
vol. XXV. p. 6).
It is not justifiable to kill a wife merely on
her forced confession, and without actual proof
of the adultery.
Of course, if a husband has been a party to
his own dishonour, his act will not be under any
circumstances considered justifiable (H. A. H. L.
vol. XXVI. p. i); and he cannot justifiably kill
an innocent bystander who interferes to prevent
JUSTIFIABLE HOMICIDE 255
him from satisfying his revenge (H. A. H. L.
vol. XXVI. p. 9) — though if a policeman
who knows the circumstances interferes and is
killed in consequence, the act is indeed not
justifiable (being on the contrary ordinary homicide) ,
but the aggravation that the person killed was
an official will not be taken into consideration
(H. A. H. L. vol. XXVI. p. 10).
If a wife procure the dishonour of her daughter,
and her husband kills her in his righteous indignation
iife >j^ ^ i§t he will not be held capitally liable ,
but only sentenced to a short term of banishment —
V. case ' of Wu Wu % 51 (H. A. H. L. vol.
XXVI. p. 3); but c.f. the position where it be the
mother-in-law who is killed — though, as in the
case of Jen Hsiao-ch'in fi ^ ^ , she had not
only procured the wife's dishonour, but was actually
forcibly restraining the husband from avenging
his wrong (H. A. H. L. vol. XXVI. p. 11).
It does not appear that a husband is justified
in killinof a friend who desires to know more of
his wife, and who offers to punch the husband's
head when he objects (case of Wang Ch'i-shan
^ ^ UJ p. a. S. p. vol. XXX. p. 47). The
256 JUSTIKIAIU.E HOMICIDE
husband would be justified, however, in so doing
if the friend had a knife in his hand, and puts
the husband in fear thereby. And most certainly
a husband will not be held justified if he poisons
an innocent person, in the attempt to get rid
of his wife's lover.
A wife who kills anyone in defence of her
husband will receive some mitigation of the
capital sentence (H. A. H. L. vol. XL. p. 62).
Seemingly the case would be considered partially
justifiable, and the rules applicable would be
those oruidinof the Court in the case of a son
under similar circumstances.
And as regards homicide by relations generally,
questions of justification commonly arise where
the killing took place in a relative's defence.
To kill in a relative's defence one who has
assaulted him with deadly intent is limitedly
justifiable, and subject to the special considerations
of the case. But the case must be a clear
one, and instances are on record where it has
been held in no measure justifiable to kill in
defence of an elder brother. The majority of
cases, however, as usual arise in connection with
JUSTIFIABLE HOMICIDE 257
the defence of a relative's propriety merely. So,
it is in a measure justifiable to kill a person
who attempts to seduce a relative, either in her
defence, or if the offender (alarmed by the
interference) turns on the new comer, in his own :
but, in order to plead the statute, the slayer
must kill the offender in trying to arrest him,
and not in a mere fight arising out of vituperation
(H. A. H. L. Supp. vol. VIII. p. 29). To be
justified in thus interfering, however, the relationship
must be near, and so in the case of Ch'iao Hsi-
ch'uang ^ -g- ^t , a man who, on hearing his
distant cousin call out in the middle of the night,
killed her would-be seducer in the darkness,
was held to be not sufficiently nearly related to
have a right to interfere {id.). A merely intimate
friend (even though placed in charge of the girl
by her parents) cannot justifiably kill a would-be
seducer (H. A. H. L. vol. IX. p. 17). On the
other hand, where the homicide is committed
by a female relative of near degree, the law is
inclined to be tender — assuming there is fair
ground for the act. So in the case of M^^ Chuang
1^ ^ , who, in pursuit of the lover of her
C. E. G. 17
258 JUSrib'IABI.E HOMICIDE
daughter-in-law, killed his mother who threw
herself in the wa}' to protect her son. It appeared
that the mother knew of, and encouraged, her
son's naughtiness, and the capital sentence was
reduced to transportation commutable by fine
(H. A. H. L. vol. XXVI. p. 11). Moreover, even
where the relationship was remote, if the interfering
part}' did not kill directly, but was the indirect
cause of death, the killing will be considered
partially justifiable. So in a case where a distant
relative had a scrimmage with an abductor, and
the latter, getting the worst of it, ran away,
and tumbling over a dyke, injured himself so
seriously that he died a few days afterwards.
Held, that the slayer should be sentenced to
ninety blows and transportation for two and a
half years'.
And so furthermore with certain artificial
relationships. A master who stabbed, but did
not kill, a ruffian who had tried to ra\'ish his
pupil, was held justified, on the ground that he
did it in his righteous angrcr : some thouo^htful
friends who, in attempting to arrest the aforesaid
offender, succeeded in despatching him, were
JUSTIFIABLE HOMICIDE 259
sentenced merely to modified banishment. Homicide
committed by a servant in defence of his employer's
house and property is justifiable — but he must
not take more upon himself So in the case of
Huang Yung-tsai ^ f^ ffi , who killed his
mistress' lover in the middle of the night, undet'
the impression that he was a thief. It was held
that if the fellow had been a thief, Huano- mieht
justifiably have killed him then and there, but
he was not the o-i^iardian of his mistress' honour
— which, incidentally, she had previously sacrificed
(H. A. H. L. Supp. vol. VIII. p. 29). On the
other hand a servant who makes up to his
mistress may, in some measure, be justifiably
killed by the irate husband (H. A. H. L. Supp.
vol. VIII. p. 30). In conclusion an example of
the official relation. A constable, armed with a
warrant and in self-defence, is practically justified
in killing an offender who resists him, provided
the killingr be unintentional and in the act of arrest.
26o EXCUSAIU.K HOMICIDE — ACCIDENTAL
SECTION III — EXCUSABLE HOMICIDE
EXCUSABLE HOMICIDE
By far the most important class of this is that
described in English law books diS per infortunium^
or homicide by accident or misadv^enture. Homicide
in self-defence is also a common form ; but what
we call excusable homicide in defence of a child,
wife, parent &c., is, in China, merely an effect
of relationship, and a form of justifiable homicide —
excusable is too weak a term.
Accidental. — This is primarily divided under
three heads hsi sJia ^ ^^ , 7021 ska |j| ^ ,
and kno shih ska i^ :^ ^ — i. e. killing in the
course of sport, killing by mistake and killing
by accident. The obvious distinction between
the two latter is, that in killing by mistake, the
intent to destroy life was there, but not to
destroy the life taken, and in killing by accident
there was no intention of taking life, and the
killing occurred by chance — in neither case is
mens rea present. An example of killing by
mistake would be the attempt to kill one engaged
EXCUSABLE HOMICIDE ACCIDENTAL 26 1
in robbery and killing a bystander instead.
Examples of accidental killing are numerous and
obvious. Examples of killing during sport occur
in boxing, wrestling, fencing - — football would
be dangerous in China.
These distinctions of themselves are inadequate,
however ; for the rules which guide a Chinese
Court in deciding whether a mven case comes
under one or other of these heads are complex :
it is not enough to merely regard the intent :
the weapon, the position of the parties, and the
locality in which the act was done, are all points
for consideration ; and a case which, at first
sight, would seem clearl)' to be excusable, when
considered in the liorht of these other circumstances,
becomes a possibly heavily punishable offence.
The subject is best dealt with by regarding
the cases. And first a general rule is laid down,
that for killing to be considered accidental, it must
have been purely accidental and unavoidable —
in the words of the law ^ B PJT 7 li '21> iS
PJl' ^ ^'1 , the use of eyes or ears could not
have avoided the accident, and no care or
thoughtfulness could have prevented it : ]iX ^
262 EXCUSAm.E HOMICIDE — ACCIDENTAL
S t?n f Sj S<^ ^ A 1 there was no design
throughout of injuring anyone and it happened
by chance. So, in the case of Huang Chung-chao
^ Fp ^ ' wherein the plea was admitted — the
prisoner trying to get away from a drunken man
who desired to wrestle with him, and who being
somewhat unsteady on his pins, toppled over
amongst some firewood, and killed himself (P.
A. S. P. vol. XVI. p. 4). And so, also, the
case of Pan Pu-hsieh SS 'j^ ^ , wherein the
prisoner had fired a bolt from his crossbow in
the dark at a fancied thief — and a companion,
unexpectedly getting in the way was killed (P.
A. S. P. vol. XVI. p. i). And so again in the
case of Chung Lin ^4* W 1 wherein a person
who had used all his faculties fatally injured —
quite accidentally — a complaisant virgin. Chung
was excused the death on payment of a fine —
but was puni.shed for his immorality (H. A. H.
L. vol. LII. p. 14). So further with the oft
recurring cases where a person's cattle being
frightened by extraneous causes escape and do
fata] injur)' — and if a man keeps a pet monkey
EXCUSABLE HOMICIDE — ACCIDENTAL 263
and the^ animal bites itself free from its cord,
and kills a baby, the owner \\ill be no more
hardly treated (H. A. H. L. Supp. vol. V. p.
4). hi the case of Ko Shii ^ ^^j , the prisoner
was driving a cart, and in doing so killed an
old woman. He had, it appeared, called to her
to get out of his way — which she not cmly
refused to do, but actually started the bullocks,
by striking one of them with a fork she held.
Ko was allowed to commute the capital penalty.
Equally effective was the plea in the case of
Wang En-ch'ang I S ft , and Ho Yiin i'a\ ^ -
in which a third person was killed. Wang was
riding quietly along when a man by some chance
startled his horse and caused it to bolt. Held,
that the case should be considered as one of
accidental homicide by the man who frightened
the horse, and that he, and not the rider, must
pay the customary fine to the relatives.
The law on the subject of accidental homicide
by riders or drivers was the subject of a memorial
approved in the 36'^^ year of Ch'ien Lung. It
appeared that up to that time the plea had
been generally advanced, and invariably succeeded
264 EXCUSABLE HOMICIDE — ACCIDENTAL
in such cases — the driver or rider always
alleging that the horse or mule had been
startled, and ran away in consequence. The
memorial submitted that the plea should be
admitted where the driver was driving quietly,
and his team was frightened b)' causes beyond
his control ; or where he was driving fast, being
compelled thereto by the public service : but
that the driver or rider should be held responsible,
where he was driving or riding beyond the
ordinary pace, without sufficient cause — though
the accident occurred by the animal starting.
This view was fully approved by the Board —
with the comment that, if a person is riding
furiously, and the horse gets startled, the result
is not one that could not have been foreseen
A policeman who kills a bystander by accident,
in trying to arrest a thief, will be permitted to
escape with the usual fine paid to the relatives
of the deceased (H. A. H. L. vol. XXXII. p.
39) : but not, however, if he was merely keeping
EXCUSABLE HOMICIDE — ACCIDENTAL 265
order, and wounds someone fatally (v. case of Lu
Piao #^, H. A. H. L. vol. XXXII. p. 38).
And in the defence of his property, a person
may claim the privileges of a policeman (H. A.
H. L. vol. XXXII. p. 34) ; as in the case of
Chu Tao-ching ^ ^ ^ , who lodged in his
nephew some buck-shot intended for a thief,
whom he was resisting, — though relationship
also played its part in this case, but would not,
of itself, have been sufficiently weighty a plea
to enable. Chu to escape with a fine merely.
A policeman is, moreover, relieved from all
consequences (saV. after payment of the usual
fine) if he chances to kill a bystander, in defending
himself from assault by a thief: but the Board
laid down very particularly in the case of Huang
Huai-kuei W fe s , that to brino- the case under
the statute, the man must be a police officer,
and that he must be defending himself from,
and not attacking a thief In the case in question,
the accused, at his neighbour's entreaty, was
pursuing some thieves who had robbed the latter,
and, fearing a rescue, the accused made a thrust
at one of them — with the result that the
266 EXCUSAlil.K HOMICIDE ACCIDENTAL
knife found a resting-place in the stomach of one
of his friends. Held, that, as he was neither a
police officer, nor acting in self-defence, he could
not be entirely relieved of the consequences.
With the position of a policeman may be
advantageously contrasted that of a soldier. For
a policeman to successfully plead accidental
homicide, the two concurrent conditions, (a) within
the scope of his employment, and (b) the necessity
of the case, are essential. But the position of a
soldier is different ; his primary business is not
the repression of disorder, or crime ; and even
if he assist a hard-pressed policeman, his action
will not be viewed with favour — unless, by
some strange coincidence, the policeman is a
relati(m of his. An ordinary soldier is ordinarily
in the position of an ordinary person — more,
a soldier in China is one of the scum of the
earth, a very ruffian b)' nature, and, as a rule
of practice, it may be safely said, if he commits
homicide, every presumption will be against him.
For want of ordinary care, a soldier must, of
course, suffer ; as in the case of Chu Chin-feng
^ ^ l^l^ , who, at a review, shot an onlooker —
EXCUSABLE HOMICIDE — ACCIDENTAL 267
the matchlock being loaded with ball instead of
with blank cartridge. The statute under which
the case came was held to be that providing
for accidents in the Imperial Hunts j^}^ J|r |§
An ordinary person who, in attempting to
arrest a thief, accidentally kills a bystander,
is capitally liable. So, in the hard case of
Chang Ssil-hui J^ plj "^ , who coming to the
assistance of his servant, struggling with a thief,
knocked the former on the head, instead of the
latter.
As regards accidental homicide by sportsmen,
until the 39^^ year of Ch'ien Lung, the rule was,
that the capital punishment might be redeemed
by fine. In the aforesaid year, consequent on
the case of Huang Ch'ang-huai Jl" Wi '^ ^ ^
new statute was passed, imposing the penalty of
three years' penal servitude, in addition to a
fine. In the case in question, it is to be noted
that the accident was purely unavoidable. Three
friends were out shooting together, and started
a deer : two of the stalkers had fired and missed,
268 EXCUSAHI.E HOMICIDE ACX'IDENTAL
and the third, coming out of the jungle, fired
his shot, just as one of the others had left his
station in pursuit — and the latter, being in the
line of fire, was consequently killed (P. A. S. P.
vol. XVIII. p. 7). Soldiers and others, engaged
^n the Imperial Hunts, are excused further
punishment, on payment of a fine of Tls. 10
for a soldier, and Tls. 50 for a beater (P. A.
S. P. vol. XI. p. 13).
A person armed with a deadly weapon is
liable for not using proper control over it, and
if, regardless of circumstances, he lightly uses it,
with fatal effect, he will be liable. So, in the
case of Pien Liu 3^ y>» , wherein the prisoner,
who was out shooting on the high r(3ad, accidentally
fired off his gun, and shot his companion. The
locality where the discharge of firearms takes
place is a material consideration — and so here,
the spot being upon the high road (though
little frequented), the prisoner was sentenced to
penal servitude for life three thousand // from
his native place (P. A. S. P. vol. XVII. p. 6)
— V. also case of Lu Chang {inf.). And if, in
a c[uarrel, a [)erson armcxl with a dagger, stabs
EXCUSABLE HOMICIDE — ACCIDENTAL 269
another — not indeed with fatal intent, and
only purposing some slight admonition — he
will be liable for want of control over his weapon.
And, under certain circumstances, a person will
be liable where he has not actually used the
weapon to do the fatal work, but where the
weapon was within his control : as in a curious
case, wherein a kindly friend attempted to stay
a would-be suicide, and the latter, closing with
the interv^ener, caused him to be pierced (with
fatal effect) by a dagger that projected from
the suicide's girdle.
Special rigour is shown in dealing with cases
of poisoning •, as in an instance where a man
put arsenic between millstones, with a view to
poisoning a neighbour's pigs. No pigs were
poisoned, however — but some of the villagers;
and when the poisoner advanced the plea of
accidental homicide, it was held that, though he
had indeed asked whether the meal in question
was for the pigs, yet he must have known
that the mill was used for many other purposes
besides grinding pigs' food, and that he had
not taken special precautions (H. A. H. L. vol.
270 EXCUSABLE HOMICIDE — ACCIDENTAI.
XXVIII. p. 88). And it is laid down, that if a
man placed poison where people pass constantly,
and in exposed positions, and death result thereby,
the offender will not be allowed to easily escape.
Even the accidental use of poison is punishable
heavily, if death result — as where, for instance,
a cook mistook rat-poison for pepper, and seasoned
soup therewith (H. A. H. L. vol. XXVIII. p. 89).
Apart from poisoning cases — which are, in
some respect siii generis — what, to us, and to
an ordinary jury, would seem pure accident, is
visited upon the person throucrh whom the accident
happened. Thus, in the case of Wang Wu-pao
i ^ W 1 the offender merely pushed a couple
of persons, who were fighting, out on to a
doorway — in fear that they would do some
damage. The result was, that the pair fell over
in a heap, and one of them ruptured himself,
and died. The Provincial Authorities held the
case to be clearly accidental homicide, but the
Board reversed the judgment, and declared it
to be fatal as.sault (H. A. H. L. vol. XXXII.
p. 22). It was the same in the still harder
case of Wang Chung-ts'ai ^ H^ >l , in which
EXCUSABLE HOMICIDE ACCIDENTAL 27!
all the prisoner did was to put his 'arms around
one of two men who were quarrelling, and
carry him bodily away, to prevent a fig-ht —
with the result that the man broke a blood-vessel,
and died (H. A. H. L. vol. XXXII. p. 24).
Indeed , if there is any struggle at all ,
either with the victim, or with anyone else, the
case would seem to be regarded as one of
fatal assault — carrying with it the penalty of
strangulation execution deferred. So in three
similar cases quoted at the trial of an offender
Huancr T'enor w ^m , where the accused was,
in each instance, wresting a stick out of a man's
hands, to prevent his beating someone else (H.
A. H. L. vol. XXXII. p. 25).
Even a challenge to fight seems enough to bring
a case under the head of fatal assault. So in a case
where one man told another to put his child down,
or he might hurt it — and the father dropping the
infant hastily, the child died. The offender was
held guilt}' of fatal assault, because he put out his
hand to take the child in the first instance, and
failed to catch it (H. A. H. L. vol. XXXII. p. 26).
A person may suffer, it appears, for being,
2 72 EXCUSABLE HOMICIDE — ACCIDENTAL
however accidental!)', a remote cause of death ;
as in the case of Ko Shih-chiang >fPj iH! yX i
who was held responsible for the death of a
man, killed by a stone which had been set
in motion by a person running away from the
prisoner (H. A. H. L. vol. XXXII. p. 28). Nor
would it seeni to be greatly material, that the
accident happened while the prisoner was doing
a perfectly legal or even meritorious act ; as in
the case of Lu Chang J^ ij , who, at the
request of the owner of a field, fired off his
gun in the air, to frighten some robbers, and
killed an onlooker.
Indeed, until the case of Chang Hsi-fa 5S ^ |^ '
if, in defending himself from a blow, a person diverted
it from himself to another, he would be held
responsible — a clear absurdity (H. A. H. L. vol.
XXXII. p. 30). In the case of Teng Jung-k o §P ^
Pf) , a man was held responsible for the death of a
child, who was holding on to its father's clothes, and
which tumbled down and hurt itself, during the
course of an attempt on his part to forcibly
induce him to vacate his ])remises (H. A. H. L.
vol. XXXII. p. T)2))- And, in the case of Shih
EXCUSABLE HOMICIDE — ACCIDENTAL 273
Ch'i-ch'iian ^ ^ "^ ^ the prisoner was held
responsible for the death of a child of an
importunate dun — though it was doubtful
whether the mother stumbled in trying to avoid
a push on his part, or a ferocious dog which
he had on the premises (H. A. H. L. vol.
XXXII. p. 34 — zj. also p. 285). Finally, the hard
case of Lu Ku '^ |^ , wherein two men were
half-seas over, and shaking the door of the
room they were in, caused the door-bar to
topple over upon one of them. The companion
thereon tried to cut the bar adrift, and manaored
to knock the other on the head with the back
of a chopper. The offender was sentenced to
death, and a recommendation to mercy disallowed
(P. A. S. P. vol. XIX. p. 17). It is to be
remarked, however, that, in this case, the man
was a foreiofner.
On the other hand, once it has been established
that the circumstances were excusable, it is of
no importance that the effects of the accident
were extremely serious. So in the case of Wu
Ch'i-li :7F^ 'b ^ , the prisoner had caused the
death of four persons, by setting fire to some
C. E. G. 18
274 EXCUSABLE HOMICIDE — ACCIDENTAL
hay with fireworks he was letting off in honour
of the gods. The wind, it appeared, had caused
the accident, and the prisoner was excused with
the proper fine for each life lost. And, moreover,
even where the circumstances were such as to
point to gross neglect, and the effects serious,
the offence may be treated lightly. Thus, in
the case of Ch'en Liang- tso |?^ ^ "^ • who
piled bales of goods on flooring supported by
a rotten beam, and the floor, crushing through,
killed a man lodg-inor below. For this, the offender
was allowed to pay a fine by way of commutation,
although found guilty of killing by neglect of
proper precaution "^ffl M> -^ pM — 3. rider being
added to the effect that he had been lax in
guarding against a possible danger ^ i^ "^ m>'
In conclusion, it may be added, that the penalties
for killing by misadventure are formal ^ ^
onl)' ; Acts of Grace do not, in consequence,
affect them, and fines paid in commutation of
the penalty are, in all cases, to be exacted (dictum
of Board in case of Wu Feng-ming :^ ^ f|^)-
EXCUSABLE HOMICIDE — ACCIDENTAL 275
The following are some important instances,
showing the mode by which the Chinese jurists
approach a case of the kind.
In the case of Ch'ii Hei ^ ^ , the prisoner
taking a gingall to examine it, dropped a spark
on the priming from his pipe — in consequence
of which the gun exploded, and killed a friend
sitting close by. As the prisoner knew that the
gun was loaded, and also that if fire was applied
to it it would explode, and also that his friend
was sitting only a foot's distance from him, the
Board decided that this was not a case of killingr
by accident, neither was it a case of killing a
person who could not be seen or heard ^ §
3^ ^ , or in a way that could not have been
anticipated ^^ ^^ ^1] . Nor was it a case of
killing by mistake, for the prisoner did not fire
off the gun intentionally. Held, that he be
sentenced to transportation for life three thousand
/?' from his home, and receive one hundred
blows of the heavy bamboo, for letting off
firearms in places where people are living .^ ^
^^ A^itm^mmmAmM (h.
A. H. L. Supp. vol. IX. p. 15).
276 EXCUSABLE HOMICIDE — ACCIDENTAL
In the case of Wang Li-t'ien i jjl B3 , the
offender coming into his lodging late at night,
threw a stone on the stove bed, to serve him
for a pillow — and killed a friend who was
lyir.g on the bed sleeping. Inasmuch as it was
pitch dark, and the deceased did not snore, it
might be said that, neither his eyes, nor his
ears, would have helped the offender : but, though
the Court considered that there was some excuse
for throwing the stone on the bed, it was held
proper to award a mitigated penalty for throwing
bricks about without cause where there are people
living or stopping MiKftt)^A>SjLh^^
© ^|i ^H 5 ft ' A 1^ M , and sentenced the
offender to one hundred blows and tliree years'
transportation (id.). In a case, however, where
persons were playing at ball, and a stranger coming
behind the homicide, without his knowing it, was
struck by the ball, which slipped out of the
thrower's hand and flew backwards, it was held
that using his eyes and his ears would not have
availed the homicide, and that he could not
have anticipated the result — and he therefore
was allowed to compromise the case, by making
EXCUSABLE HOMICIDE ACCIDENTAL 2 77
compensation to the relatives of the man killed.
In the case of Li Ju-po $ iO >f |& , the accused
was amusing himself, swinging a hammer outside
another's door, and hearing someone coming behind
him, and turning sharp round, he brought the
hammer against the other's head, and killed
him. The Court decided that Li had no business
to be playing with a thing capable of causing
death in a place where people were about, and
sentenced him to one hundred blows and
transportation for life — under the statute prohibiting
throwing bricks and stones about where people
are living or stopping. As, however, the offender
was under age, he was allowed to commute
the penalty by a fine, on paying Tls. lo funeral
expenses (H. A. H. L. Supp. vol. IX. p. i6).
In the case of Hu Wen-ch'eng o^ 8 ^ i ^
man had loaded his matchlock to shoot a bird,
but the bird flying away as the sportsman was
walking, the trigger in some way got entangled
in the man's dress, and caused the weapon to
explode, and kill a passer-by. The Board acquitted
the prisoner of any intention to fire his gun,
but sentenced him to a mitigated penalty of
278 EXCUSABI^E HOMICIDE — ACCIDENTAL
transportation for three years, for letting off firearms
in places where people are about (id.). In the
case of Han Kuai-erh @ 'fj 54 , tvvo men were
out together in the country shooting birds, and
one of them slipping, his gun exploded, and
killed his companion — for which the Court
sentenced him to a mitigated penalty of two and
a half years' transportation and ninety blows,
for letting off fire-arms in the country and killing
people .ft^ffiBl»m;SJ:^A (H. A.
H. L. Supp. vol. IX. p. 1 7).
In the case of Huang Wen-chih 5C !X^ ^'
the prisoner threw a stone over his shoulder,
whilst walking in an unfrequented place, and
chanced to hit a beggar who had turned into
the road from a side path. The Court acquitted
Huang so far as to say, that using his eyes or
his ears would not have prevented the occurrence,
and that as it was, besides, an unfrequented road,
the case did not, altogether, come under the
statute relative to throwing bricks where people
are about : on the other hand, the prisoner was
to blame in not having considered the possibility
of someone coming out of the side path, before
EXCUSABLE HOMICIDE — ACCIDEXTAl. 279
carelessly throwing stones, and sentenced him to
one hundred blows and three years' transportation.
In the case of the shepherd Liu Chung-ch'eng
Wi ^ wC •, the prisoner was driving some sheep,
and inviting a friend to assist him in so doing,
he managed to run his driving spear into his
assistant, and killed him. Held, that it was done
in the hurry of driving the sheep back, but, that
he ought to have remembered that his friend was
in the fold with him, and he was accordingly
sentenced to one hundred blows and transportation
for life to a distance of tliree thousand //, under
the law relatingr to shootincr wild beasts in
frequented places, and unfortunately killing someone
in doing so[Si^ A Slit ^"^mMmm
(id.).
In the case of Weng Wan-lung ^ ^ 'Jf^,
the prisoner being asked by his friend to give
him a spade, instead of taking it, and handing
it to him, tossed it over, and accidentally killed
him. For this, the offender was sentenced to
transportation for life three thousand li distant and
one hundred blows, under the statute regarding
28d excusable homicide ACCIDENTAL
the throwing of bricks and stones in frequented
places (H. A. H. L. Siipp. vol. IX p. i8).
In the case of Kao Ch'i-kang i^ ^ |^ , the
Board allowed that it was a case of accidental
death. The prisoner, and a friend of his, had
heen in the habit of larkino- too-ether, and one
day, as the former was washing out a wine jar,
his friend threw some sand over him. The prisoner
retorted by splashing his friend, and then running
away, to avoid being ducked in return, he jumped
over a heap of rubbish in his path : his friend,
in chase, attempted to do the same, but slipped,
and broke his neck — or, at least, managed to
kill himself. Held, although the affair arose out
skylarking, Kao ran away to avoid being ducked,
and not to play a trick on his friend — therefore,
it was not like a feint in boxing : the man slipped
running after him, and he could neither see
nor have anticipated what would happen; and
accordingly, the case exactly fitted the words of
the note to the statute referring to the chance
killing of a man whom the slayer had no intention
of injuring ^<JJ M W A Z M i?^ ^i^ A Z
^ — and (71. /)), the prisoner was allowed to
EXCUSABLE HOMICIDE ACCIDENTAL
commute the penalty of homicide for a nominal
fine {id.). The case of Liu Chiu-yiian ^J ;/L VTC '
a boy aged nine, is still more curious. The child
was playing with a comrade at splitting sugar
cane, and finding himself too short to do it with
success, he got on to a wall. The wall was
rotten and gave way, and the friend in trying
to catch him as he fell, got cut with a knife
which his playmate held in his hand, and catching
cold in the wound, died within twelve days
afterwards. On these facts, the Board laid down,
that as the two were- certainly not quarrelling,
and that as it was impossible to have foreseen
that the wall would have fallen, and that the
victim running- to the rescue would eet wounded,
and die throuofh catchino- cold, the case was one
of killing by misadventure, and the penalty might
be commuted by fine (H. A. H. L. Supp. vol.
IX. p. 19).
In the case of Yang Fei-lin ^ fjl; ^ , also,
the Board found that the death of a child, which
slipped from its mother's arms, comes within the
statute of killing by misadventure. Here, there
had been a slanging match between the prisoner
282 EXCUSAPLE HOMICIDE — ACCIDENTAL
and another man, consequent on a collision
between them, and the man's father joining in,
expressed himself so strongly, that Yang's brother
felt himself compelled to call on him, and ask
for an explanation — Yang himself accompanying
his brother, to throw oil upon the waters. At
this interview, the other man's wife, carrying her
baby in her arms, also came to the front, with
a view to intervening, and Yano- fearing that the
baby would come to grief, laid hold of her coat,
to keep her back — which led to her letting the
baby drop, and, between the tumble and the
fright, it was killed. As Yang's intentions were
good, and the consequences could not be foreseen,
the Board let him off with a fine (id.).
In the case of Kao Tzil-erh 1^ "T* tE* , again,
the prisoner was let off, it appearing that he
was trying to stop a fight, and slipping upon
some newly cut paddy, knocked over a man
who was reaping behind him, with the consequence
that the latter received from a sickle, that he
was holding in his hand, a slight, but eventually
fatal, wound — for though the cut healed up,
the patient insisted on scratching it, and afterwards
EXCUSABLE HOMICIDE — ACCIDENTAL 283
caught cold in the sore. It would seem that the
prisoner should have been acquitted, inasmuch
as he did not know that there was anybody
behind him, and had no intention of hurting the
deceased or anyone else, and, especially, as the
cold resulted from the victim's own carelessness.
The Board held, however, that the blame in
such a case must lie with the original cause of
the injury, and condemned the prisoner, but
allowed him to commute the penalty for a
nominal fine — as the case came within the
statute in regard of people slipping and injuring
those walking beside them ^ ^ ^^ S^^
A Z^ (H. A. H. L. Supp. vol. IX. p. 20).
V In the case of Ts'ao Li ^ ;]i§ , the prisoner
was stooping down cutting vegetables, and when
a friend, in chaff, came behind him, and pulled
him over backwards, T'sao reached round, and
cauorht hold of him, with a view to having a
wrestling match, and accidentally wounded him
in the foot. The wound was very slight, and
the man evidently died from taking cold, but
the Board, treatingr the case as killine in the
284 EXCUSAliI.E IIOMICinK ACCIPENTAL
course of a fight, sentenced T'sao to one hundred
blows and transportation three thousand li from
home — the capital sentence being remitted, as
the wound was not, in the first instance, a
dangerous one (/c/.). In the case of Ch'en Yii-ch'eng
1^ ffi ^ , the prisoner, while mowing corn,
accidentally wounded a gleaner, who had come
up behind him, and whom, as he was stooping
down, he could not see. The gleaner, catching
cold in the wound, died, and the prisoner was
merely sentenced to transportation, commutable
by fine {id}j.
In the case of Ch'iu A-hsi P|5 pPf 4^ , two
lives were lost by a boat upsetting. It appeared
that the prisoner was having a quiet scull, and in
passing another boat, wetted the best dress of
a lady who was seated therein. Much annoyed,
the lady laid on to the prisoner's craft with a
boat-hook — hence the accident. The prisonef
clid not intend to upset the boat, and had no
quarrel with the victims, but the Board considered
that a capital sentence should be imposed, as
the law says H^|SXf?iipS^^A*ja
(fj it ife X 1)1 f< * fS Is 1^ , i- e- whoso
EXCUSABLE HOMICIDE — ACCIDENTAL 285
accidentally kills a bystander in the course of a
fight, shall suffer the penalty of killing a man
in the course of a fight — strangulation, subject
to revision — and, as two lives in one family
were sacrificed, the Board was of opinion that the
sentence should be strangulation without revision
(H. A. H. L. Supp. vol. IX. p. 23).
In the case of Shih Ch'i-ch'uan ^ ^ -j^ ,
the prisoner gave a woman a push, not seeing
that she was carrying a child behind her — and
the woman, staggering back, the child tumbled
down, and hurt itself, and being already sick,
died. For the prisoner, it was alleged that he
did not see the child, and merely gave the
woman the push, to save her from his dogs,
which were barking at her. This contented the
Provincial Authorities, who considered the case as
one of accidental homicide. The Board, however,
quashing the decision of the Provincial Courts, put
the defence aside, holding that it seemed clear that
the prisoner had pushed the woman in anger, because
she was pestering him for some money due by him,
and, doing so, the prisoner was clearly liable for the
consequences (P. A. S. P. vol. XIV. p. 54 — v. ante).
286 EXCUSABLE HOMICIDE IN SELF-DEFENCE
Homicide in self-defence. — If one person
attacks another with a lethal weapon, the person
attacked may kill the aggressor in self-defence,
and will incur no penalty thereby : but if the
killing be done after the weapon has been wrested
from the aggressor, the slayer will incur a slight
punishment of eighty blows — and this although
the aggressor was still violent, and had just
previously had the attacked at his mercy (z'. case
of Li Ch'ing ^ yf H. A. H. L. vol. XXI. p. 65).
If both parties be unarmed, it is also, quite
excusable for the person attacked to kill an
aggressor in self-defence (case of Hua Yung-lu
H ffl # H. A. H. L. vol. XXI. p. 66).
It is merely transportation for three years to kill,
with a lethal weapon, a rowdy who molests one
without cause — but the man must be a bully,
and it is not sufficient that he was the aggressor
merely. So in a case where the provincial courts
fought hard for a mitigated sentence — the
man killed being a decidedly bad character, and
the aggressor in the case. He had, it seemed,
first ravished his step-daughter, then got drunk,
and blacked the eye of her aunt, for getting the
EXCUSABLE HOMICIDE IN SELF-DEFENCE 287
girl removed — and finally drawn a knife on the
aunt's husband and brother, who had come to
her assistance. The Board laid down that, though
the ruffian's relations were entitled to hand him
over to the Authorities, they were not justified
in stabbing and hammering him about the head,
after they had knocked him down — and the
principal was eventually sentenced to be strangled.
It was otherwise, however, in the case of Liu
Ssil-k'un ^J jly '/^ , wherein a scoundrel — a
known bully — molested a person physically
much weaker than himself, and started to thrash
him. The attacked thereon stabbed and killed
the aggressor, and was sentenced to the before-
mentioned mitigated penalty (H. A. H. L. vol.
X. p. 5).
CHAPTER VII
OFFENCES AGAINST THE PERSON
[CONTD.) — HOMICIDE [CONTD.)
SECTION I — MANSLAUGHTER
MANSLAUGHTER
The subject has already been dealt with
incidentally in connection with justifiable and
excusable homicide — some special points,
however, need attention.
In the first place, the offence may result from
extremely indirect causes — and causes, moreover
which would appear perfectly excusable, or even
justifiable — provided always that there was
some preliminary scuffle or fight or even words
merely. Thus, in the case of Ho Kuo-ch'a
^ 'Pil "^ 1 a person was held capitally responsible,
because a lunatic he thought was trying to ravish
his sister-in-law, ran out into the snow to escape
MANSLAUGHTER 289
a beating, and leaving- his clothes in the prisoner's
hands, got frozen to death (H. A. H. L. vol.
XXI. p. 46); and in the case of Ch'e Ta ^ /^ i
the prisoner had been slanging an old gentleman,
who thereupon made an attack on him, and
the prisoner, putting up his arm to defend himself,
knocked the old fellow over — with the result
that he died the same night from asthma (H.
A. H. L. vol. XXX. p. 70). Numerous drowning
cases afford good examples. Thus, in the case
of Lu Jui-yli (^ ]^ BS , the prisoner was capitally
sentenced because a rival, trying to avoid him
on his raising a hue and cry, tumbled into a
stream, and was drowned (H. A. H. L. vol.
XXX. p. 62) : similarly in the case of Chiang
Hung-fu ^^ 1^ ^ , wherein some persons carrying
off the prisoner's ox before his eyes, stumbled
and fell into a torrent (H. A. H. L. vol. XXX.
p. 63) : and, harder still, the case of Ch'en
Feng chan |J^ ^ y^ , wherein the deceased ,
who seemed to have been the aggressor throughout,
flying from the prisoner, took to a boat, and
upset it (H. A. H. L. vol. XXX. p. 66).
There is an instance on record, however, where
C. E. G. 19
290 MANSLAUGHTER
the offender was not so liardK* dealt with —
for he reall\- had some claims to consideration.
It appeared that he had caui^ht a thief, and in
leading the latter to the police station with a
rope which he had placed round his captive's
throat, he stumbled — and dragged his prisoner
with him into a stream. The thief was drowned,
and his captor was given three years transportation
— since, as the Court declared, the deceased
was actually to blame (H. A. H. L. vol. XVII.
p. 16).
The general custom, rather than the general
rule, in drowning cases resulting from two persons
wrestling together, seems to be that the survivor's
name is placed on the list of cases deserving of
consideration, if he was caught hold of by the
other, and did not do more than resist; but
that the name is merely placed on the list of
cases deferred, if the two were struggling
together ^ H i% B M Z M ^ i^^W^
* Ji ^ * A ??• S IB: * A ^ (H. A. H.
L. vol. II. p. 22).
Interesting points arise in ctjnnection with loss
of life arising from the unskilful practice of medicine.
MANSLAUGHTER
291
It is herein provided that, in such cases, other
practitioners shall be called in to examine the
nature of the wound, and the kind of medicine
administered, and if it then appears that the
error, though of judgment, was purely accidental,
the practitioner may be allowed to redeem the
penalty for manslaughter by fine — as in cases
purely accidental — but will not be allowed to
practice any longer. On the other hand, where
a practitioner, with a view to increased fees,
aggravates a malady, with the result that the
patient dies, the penalty of decapitation will be
adjudged.
The not uncommon offence of depriving persons
of necessar)' food or raiment with fatal issue is
apparently considered as a case of manslaughter
somewhat aggravated. So also, by way of
contrast, if a person privily removes a ladder
from beneath one who has ascended a heiofht,
or privily removes a bridle from a man on
horseback.
Where an offender, who has admitted his
guilt, avoids the discomfort of a public execution,
by getting a relation of the same degree or an
292 MANSLAUGHTER
old crony, to kill him, or to hire someone to
do so, the person or persons so killing will be
tried under the statutes relating to manslaughter
— th(! penalt)' being reduced two degrees : if
the offender has not admitted his guilt, but asks
to be killed, or having admitted his guilt, does
not want to be killed, the aforesaid person or
persons killing will receive the full penalty. If
it be not a relation of the same decree who
does the killing, but a junior or servant — such
as a son, grandson, slave or hired man — and
whether the killing be at the offender's request
or not, the sentence of decapitation without
appeal will be recorded.
SECTION 11 — MURDER
MURDER
Great as is the sanctit)' of human life in China,
murder is not the most s(M-ious of offences, nor,
indeed, treated so severel)- as in England ; for
293
whereas with us all concerned are treated as
principals, in China one onl)- is so dealt with,
and is styled the actual murderer ~F ^ ^ y\
^ 42, — the others being treated as accessories
only, although the murder was premeditated or
deliberate, and they were not only accessories
before the fact, but actual parties to the offence.
The original designer is liable to decapitation ;
the accessory, if he takes an active part, to
strangulation, otherwise to servitude only — in
all cases the sentence being subject to revision
at the autumnal assize.
On the other hand, the Chinese law sternly
upholds the principle of life for life, and innocent
children may suffer for the fault of their father
where, e. g.^ the latter murders a whole family.
A distinction may be noted in starting. It
makes considerable difference, where the murder
has connection with another offence, whether it
took place at the time of the commission of the
offence, or subsequently to it. Thus, for example,
a robber or violent abductor, who kills his victim
at the time of the robbery or abduction, is
sentenced to decapitation without appeal ; on the
294
Other hand, if the victim is killed two days
later, in tr\ ino- to arrest the robber or abductor,
the sentence is decapitation subject to revision
at the autumnal assize (H. A. H. L. vol. IX.
P- 30).
Firstly as regards murder deliberately planned
or with sudden intent — the former the o^raver.
If a murder had not been previously planned, it
will, it appears, be treated simply as killing with
intent to kill — although the circumstances were
extremely deliberate. So in the case of Ma
Shan i% ^ , wherein a brute half drunk first
beat a child and then killed it, under circumstances
of peculiar atrocity ; the Board expressed its
regret that the case could only be treated as
one of killing with intent, and that the sentence
must be referred to His Imperial Majesty before
being carried out (H. A. H. L. vol. XXX. p. 54).
If the offender kill a b)'stander, in place of
the person whose death he designed, the case
is treated as killing with intent, and the offender,
295
if the sentence be confirmed, is sentenced to
decapitation. If fire-arms be used in a fray and
at hazard a man is killed, the act is held to
be unintentional murder; and similarly so, if in
attempting to commit suicide by shooting himself,
a person kill a bystander : fire-arms are rightly
considered by the Chinese dangerous weapons,
and their use is restricted under severe penalties
(P. A. S. P. vol. XII. p. 52).
If the offender kill a man's children in the attempt
to murder the father, the case is considered as
deliberate murder — penalty, decapitation execution
deferred.
In cases of deliberate murder, it matters not how
long after the person lingers — v. ManslaiigJUer —
(H. A. H. L. vol. XXII. p. 50).
Attempted deliberate murder, if the other party
be injured in any way, is punishable with
strangulation execution deferred, and with one
hundred blows and transportation for three years',
if the other party be not injured.
A good contrasted example of deliberate murder
is that in the case of Wang Shen-ju 3E 1t A- '
who first tried to kill his wife, for wanting to
296
kick him out of the house as a dissipated worthless
fellow — and then, thinking that his mother-in-law
must undoubtedly be at the bottom of the matter,
deliberately killed her. He also killed two
neighbours who came to the rescue, and, to add a
sense of completeness to the case , deliberately
killed a woman , wife of one of the said
neiofhbours, for ofivine the alarm. Two of these
murders were deliberate, two in the heat of the
fray — and though it was admitted that the
case did not strictly come within the Act, the
offender was sentenced to immediate decapitation,
for killing three of a family in a fight (H. A.
H. L. vol. XXVIII. p. 12).
Murder with a view to plunder is regarded
more seriously than ordinary deliberate murder ;
but, to bring a case under the clause providing
for the decapitation and strangulation of the
principals and accomplices in such a case, there
must have been an original intent to murder
with a view to benefit thereby H Pit -^ niJ 2
* ^w-fe t Hit ^ « * ^ tffi « H it
i& « m ^ 81! -f « ff m ± m {H. A.H. L.
vol. XXII. p. 53). The intent to plunder is not
297
enough, though the victim be murdered to prevent
discovery after the object has been attained — and
the essentials are, envy of a man's possessions,
desire to obtain his property, and designed killing
for the purpose of obtaining it (H. A. H. L.
vol. XXII. p. 55). And, as regards the description
of the property coming under the clause, a son
or a wife is considered as much a valuable as,
for example, a handsome pipe {id.) — and to carry
either of these persons off and sell them will
render the offender liable to the above penalty
{v. case of Chang Chu ^ 7^ H. A. H. L.
vol. XXII. p. 56).
In regard of robbery followed by murder, it
is to be noted, that it is equally murder where
the robber does not with his own hand kill his
victim, but is the direct cause of the death of
the person robbed — even from mere alarm,
and nothing more : as in a case where a man,
whose boat was being robbed, jumped into the
water in his alarm, and was drowned — 7iota
bene the victim was neither threatened nor pursued
(H. A. H. L. vol. XVI. p. 8).
As regards murder connected with immorality,
there is this difference from ordinary murder, that
all the parties to it, if parties also to the im-
morality, are treated as principals, and sentenced
to decapitation subject to revision (H. A. H. L.
vol. XXIV. p. 58). In its side issues it is also
severely visited. An adulterer who gave the injured
husband satisfaction, and shot him, would be
decapitated — and the caiisa teterrima belli would
also be capitally sentenced. The gallant Colonel
who satisfies himself, and then gives the injured
husband satisfaction, is not often to be found in
China : and an adulterer who killed his love by
accident, in trying to kill her husband, whom he
afterwards ran through, was punished as if he
had killed two of the same family (H. A. H. L.
vol. XXVIII. p. 13): and the same penalty was
adjudged a man who killed an injured husband
and his brother, who tried to lay hold of him
flagrante delicto (H. A. H. L. vol. XXVIII. p. 14).
Murder with a view to quarter, or otherwise
maul, the limbs of the deceased for magical
purposes, entails on the principal in the offence
the punishment of being sliced to pieces : accessories
in the offence are liable to decapitation : members
299
of the household of the principal — e. g. his wives,
sons and daughters, servants and slaves — ■ are liable
to transportation for life to a distance of 2000 li.
It is murder, entailing the penalty of decapitation
without revision, to cause the death of a man
by vengefully burning his house or ricks — though
it was intended only to injure him in property,
and not in person. Circonstajices attemiantes will
however be allowed, if the offender could scarcely
be said to come under the above category, and
the deceased contributed to his own death. So
in the case of Ko Wen § ^, who falling out
with his dead niece's father-in-law for refusino- to
give her a proper funeral, tried to burn the
clothes she had left behind her, to mark his
disapproval of the procedings. The father-in-law
tried to prevent the burning, stumbled, and, falling
into the bonfire, was burnt to death. For this,
the offender was sentenced to one hundred blows
and transportation for life to a distance of three
thousand li (H. A. H. L. Supp. vol. XIV. p. 41).
To wilfully occasion some venomous animal —
such as a snake — - to bite a person with mortal
effec , entails decapitation.
300
The once common practice of burying alive
was not, at one period, considered murder. It is
so now. Therefore, unless a great moral lesson
is to be enforced, and it is desirable to make
an example of one's offspring, or of one's wife,
or the public regard the act with favour, and
are ready to lend a hand, burying alive should
be sedulously avoided.
As regards murder and relationship, the chief
features have already been dealt with. A person
convicted merely of a design to kill his or her
parents or grandparents is liable to instant
decapitation — and no distinction is made as
regards principals or accessories in the offence,
except in so far as touches the respective
relationships of the parties to the person whose
killing they design. A design to kill a senior
relation within the deo-rees of mourninof entails
for the principal transportation for life to a distance
of 2000 //: if a blow is actually struck in
accomplishment of the design, the principal will
be strangled : if the murder is actually committed,
decapitation will be adjudged to all concerned.
That a junior relation should be sentenced for
30I
murder is, in brief, one of the easiest things
imaginable ; and that a senior should be so
sentenced is one of the hardest. The latter event
may, however, happen — as where the tie has,
for good reason, been dissolved ; or where, as
in the case of a wife, a husband, who has suffered
her to pla}^ the harlot, kills her deliberately therefor
— when he will be strangled (H. A. H. L. vol.
XXVI. p. 2) : and it will be the same if the
husband does not do the killing himself, but
forces her to do so (H. A. H. L. vol. XXVI.
p. 3). On the other hand, even in plain cases
of murder or manslaughter, a senior may not
only escape capital punishment, but fare lightly
— althouah it was not even a relation that was
killed. So in the case of M''^ Li (M .R , who
threw a stone at her son and killed a bystander;
and in the case of M^'^ Liu nee Tseng ^J g* ^ 1
who deliberately sent her son some poisoned
cakes, and killed a companion of his (H. A. H. L.
vol. XXXII. p. 6) : and it appears from a case
that, even if two innocent persons have thus
perished, a light penalty will still only be inflicted
— even commutable by fine (H. A. H. L.
302
vol. XXX. p. 7). Such is the effect of relationship !
As regards murder of children (not relations),
the law is specially severe ; and where it is with
a view to rape or robbery, exposure of the head
is superadded to immediate decapitation (H. A.
H. L. vol. XXII. p. 58). The provision applies
to children under ten years of age only, and does
not extend to cases where there was no previous
deliberation (H. A. H. L. vol. XXX. p. 54) — unless,
indeed, the child was killed in trying to save its
relations, when, by special decree of the 2 1 ^^ year
of Ch'ien Lung, the sentence of decapitation is
to be carried out without appeal (H. A. H. L.
vol. XXX. p. 55).
One of the most common incitements to murder
is the desire to oret a neicrhbour into trouble —
either for the purpose of ''squeezing", or in
revenge for some injury. Instances are numberless,
but a good and curious example of a blackmailing
case is that wherein a certain beggar, being hard
up, proposed to a professional friend of his, that
they should murder somebody, and blackmail a
respectable person, by charging him with having
committed the offence. His friend agreed, and
303
making the same proposal to others, they readily
gained more associates. One of the body having
procured some poison, and between them having
bought or stolen some wine, they trapped their
game and started off to the house where they
intended to levy blackmail. On the road, the poison
was administered, and the man duly dying, the
associates proceeded on arrival to tax the master of
the house with beatingr him to death. So, aeain, in
the case of Chou Tsung-sheng j^ :^ ^ , a thief
being threatened with prosecution, killed his wife,
and charged the prosecutor with it, to make
him drop the case (P. A. S. P. vol. X. p. 23).
SECTION III
SUICIDE
Chinese law views this offence in many respects
in much the same way as English law — though
there are, of course, present many of the usual
peculiarities — mostly, as regards side issues.
304'
It is sometimes classed as an offence against
religion — to Heaven a person owes his being,
and to Heaven he is responsible for due care
of the pfift.
A peculiarit)' of the offence is the nicety
with which it is regarded; and not onl\- is the
proximate cause considered, as — e.g. — to commit
suicide from shame M u^ S i^ i fro"^ ^^g^ i@t
^ @ Ife 1 or from mere excitement fpg ^ § ^ i
but the proximate reason of the cause is also
considered, as — e.g. — why was the suicide
ashamed, or in a rage, or excited? On these
points as they arise.
As regards an ao-reement to commit suicide ;
if two persons agree to die together, and one
performs the act successfully and the other does
not, if there is proof, in the shape of sufficient
wounds, that the survivor really meant to die,
the penalt)^ of transportation for life will be
adjudged : if there is no such proof, the sentence
will be strangulation, as an accomplice in deliberate
murder. So in the case of Huang T'ing ^ ^ ,
wherein the only proof was the prisoner's own
statement, that he had swallowed the poison,
305
and vomited it forth again (H. A. H. L. vol.
XXXVI. p. 36) ; and in another instance [v.
case of Liang Chi-kuang ^ Wl 3u)i poison was
swallowed, but with inadequate effect (H. A. H.
L. vol. XXXVI. p. 35).
If the agreement be with a parent, the
surviving son will be decapitated, regardless of
any considerations (H. A. H. L. vol. XXIII.
P- 45)-
An agreement with another, to profit by the
schemed suicide of that other's parents, is naturally
heavily punishable. As in the case of Yin Hsi-
hsien ^ ^ M^, who entered into a scheme for
getting some mone)- out of the death of a friend's
mother, and was sentenced to servitude in the
New Settlements — although he took no part in
the affair, and the lad\' was quite willing to
hang herself (H. A. H. L. vol. XXIII. p. 58).
A class of case which not unfrequently arises
is that, when two persons agree, that one of
them shall pretend to commit suicide, in order
to extort money or profit from another — and the
suicide instead of being sham, by some accident
is actualh- effected. What is to be done with
3o6
the surviving party ? The question depends ii] ){)n
the merits of each case. Thus, in the case of
Ch en Yi 1^ ^ and Kuo Ming |R Hj] , — t^vo
persons who, being in need of funds, mutually
agreed that the latter should pretend to commit
suicide by hanging at one of the Gates of Peking.
The affair came off — but Kuo Ming, instead of
pretending to hang himself, actually did so. As
regards Ch'en Yi, it appeared that the original
idea was not his ; but that he did not dissuade
Kuo Ming, and in the hope of sharing the plunder
had accompanied the latter, and even assisted
him in hanging up the fatal rope — taking,
however, no further part in the ceremony. No
statute appeared to exactly apply, and Ch'en
was sentenced under the one which most nearh' did
so — i. e., that providing that, in cases of wounding
with a view to extortion, the accomplice should
be held equally guilty with the principal, save
that in case of death resulting, the capital
penalt)' was to be commuted. Further, as the
prisoner did not adjust the rope, or kick away
the stool, or take, indeed, any part in the final
hanging, the commuted penalty of penal servitude
307
for life was further reduced to one hundred blows
of the heavy bamboo and three years' transportation.
A not ver}' dissimilar case was that of the druggist
Tseng Sheng-chi a ^ ^ , who knowing that
a certain drug, in limited quantities, would cause
apparent death, from which the victim could be
revived, supplied it to an acquaintance Ch'en
Ta-ning |$ /C -S i — with a view to the latter
pretending to commit suicide, and extorting money
from those who would get into trouble thereby.
Ch'en, unfortunately, took an overdose and died.
Held, that this was not a dissimilar case to the
foregoing ; that the druggist and deceased were
in agreement; and that, in particular, the case
corresponded with the provision prescribing
servitude for life 3000 // distance for those
who, in helping another to extort money, wound or
kill the latter.
To assist another to commit suicide, renders
the person so assisting liable to capital punishment,
as an accomplice in deliberate murder (H. A.
H. L. Supp. vol. VII. p. 35). If a person exhorts
another not to commit suicide, and the latter,
notwithstanding, does so, and the assistance was
3o8
confined to some such small act as carrying a
stool for the suicide to mount upon, and the
person assisting leaves before the design was
carried out, a mitigated penalty will be imposed [id.).
Looking on at a suicide renders the onlooker
to some extent liable — penalty, transportation
for life to 3000 /?' distance.
Where the person assisted was a relation the
effect, of course, differs. To aid a parent to
commit suicide, is punishable with the lingering
death : but if the junior was not present at
the suicide, and he took a passive position —
saying, when his parents announced their intention,
that he would avenge them — the penalty will
merely be instant decapitation. Mere approval
by a junior without more, is, indeed, construed
severel)', and the approving junior treated as an
accessor)- to a case of premeditated murder.
So in the case of Li Shang-}'u ^ M 'W —
a beggar sentenced to decapitation, because he
approved his elder brother's (also a beggar)
expressed intention of dying at tlie door of a
man wlio refused him the liberal alms he asked
for. The prisoner was not present, \\\\v\\ lie hanged
309
himself, nor did he assist him to do so — but the
Board was of opinion that his brother would not
have killed himself, if the prisoner had not said
that it was the only way to get satisfaction
(H. A. H. L. vol. XXIII. p. 50).
Special extenuating considerations do not appear
to have much weight, where the suicide of senior
relations is concerned. So in the case of a mother-
in law, who obtained poison from her daughter-
in-law, by telling her that she was only going
to pretend to take it. Here the daughter-in-law
was in the first case sentenced to be sliced to
pieces, and on special representation of the
hardship being made, the only mitigation allowed
was decapitation subject to the Autumnal Revision
(H. A. H. L. vol. XXIII. p. 54). Another hard
case is that of the younger brother Yang Wen-wan
^ %, ^, who bought arsenic for his elder
brother, on the latter stating that he would choke
himself if it was not procured. Strangulation on
on the spot, instead of lingering death, was the
only mitigation (H. A. H. L. vol. XXIII. p. 55)
— considerable, of course, in law.
If a wife assist her husband to cut his throat,
she will be sentenced to decapitation — with a
faint chance that, b)- a representation, the sentence
may be revised (H. A. H. L. vol. XXIII.
p. 41).
Obvious])', a senior who aids a junior, or one
in that position, to commit suicide, will not be
treated so hardly as the other way ; but the
offence is )et regarded as somewhat serious,
even if it be at the suicide's express request.
In the latter event, the sentence will be
transportation subject to revision ; as in the touching
case of Ting- Wan-nien "T ^ ^ , who buried
his wife alive at her especial request, out of
solicitude for her sufferings — apparently corns
(H. A. H. L. vol. XXIII. p. 38). To merely
buy poison, knowing that a younger brother
intends to kill himself therewith, is not lightly
punishable (H. A. H. L. vol. XXIII. p. 53).
Where one person endeavours to prevent another
from committing suicide, and the latter kills the
former, the case will be considered as deliberate
murder — and sentence in accordance -, but the
case will be entered on the list of Cases Reserved ;
and an only son may commute the penalt)' {v.
3"
case of T'icn Cheng-t'ai IB IE ^ — P. A. S.
P. App. vol. I. p. i).
There is a curious view of suicide which needs
attention, and that is the responsibility incurred
by one, who, in some way, is the cause of it.
The responsibility ma)' arise from words or deeds,
and firstly, as to the former.
Threats are a common cause. So in the case
of Chou Ying-mao JH ifi Jfl , a girl had been
betrothed to the prisoner's son by her mother
while the father was away abroad, and, on the
father's return the marriaore had been broken
off by the magistrate — it appearing that the
father had already betrothed her to some one
else. The prisoner did not attempt actual violence •,
but as he went to the house of the parents of
the girl, and shouted out from the road that he
meant to carry her off, and she incontinently
hanged herself, the Court excused him, indeed, the
capital sentence, but sentenced him to transportation
(H. A. H. L. vol. IX. p. 37). So, again, in the
decidedly hard case of Hsiao Wen-han Hf ^' ^ '
where the prisoner had good ground for thinking
another a thief, though it appeared he was not
312
so. Tracing the suspect to his house , Hsiao
found his man had left by a back door, and
so scared the fugitive's wife by the threats
he used, that she first hanged her children, and
then herself. For this , Hsiao was sentenced to
decapitation , and Hsiao's two watchmen, who saw
the supposed thief pass the enclosure they were
guarding, and gave the alarm, to transportation.
The threats used to the woman were simply to
the effect that there was a warrant out for her
husband's arrest, and that she must inform the
latter of this on his return, and that his family
would be held responsible until he was caught
(P. A. S. P. vol. XVIII. p. lo).
Another favourite mode with the Chinese is
to worry a person to death : so if one person
proceeds to dun another ||J fi j^ B^t , and the
latter commits suicide in consequence 0 S )^ §>]" ,
the former will suffer, dependend)- on the merits
of the case. Mere nagging, for reasonable cause,
cannot always be considered worrying. So in the
case of M'"^ Li nee Wang ^ yi ^ , wherein a
woman, being swindled out of her jewellery by
the son of Liang Shih-jung ^ tft ^* : wanted
313
the latter to pay her its value. This Liang
declined to do — and being bothered by her, he
jumped into a pond, and drowned himself. The
woman was acquitted of worrying Liang to death,
but sentenced to a fine for doing what she should
not have done — as her asking the father to
pay up had led to loss of life.
The acts of a person, whether designed with
a view to annoyance, and causing suicide, or
not so designed, and yet causing suicide, are
obviously another source of responsibility. On the
former point, there is a curious case, wherein a
younger brother, desiring to extract some money
from his elder brother, sent, first of all, his wife
to worry him until tie admitted the claim. The
brother standing- firm, the woman sat down in
his hall and wept — . occasionally torrentially
abusing '/|^ ^ him. So far, words, not deeds,
had been employed. But the woman, failing
with the former, proceeded to knock her head
against the wall, and to charge the brother with
doing it ; and wound up by smashing his crockery,
and twisting the necks of his children (here both
words and deeds were employed). This was
314
about as much as the man could stand ; but his
brother, not content, sent some friends to reason
with his elder — the reasoning consisting in
catching his gold fish, cooking and eating them,
and drinking the solitar)- jar of wine (liere deeds
not words were employed). This being too much,
the man straightway went and hanged himself.
For this, the brother was held responsible, and
sentenced to strangulation; the wife, acting
under her husband's orders, was sentenced to
transportation, but allowed to pay a fine instead:
and the friends, punished under the invaluable
statute dealinor two hundred blows to those who
do what they ought not to do.
Where suicide results from impropriety by
deed, the affair will be treated seriously ; but if
the advances were only verbal the punishment
will be light, or none at all. So in the case of
a married woman, a person who makes her
physical demonstrations, and so causes her to
commit suicide, will be capitally liable — the penalty
being commutable occasionally to transportation.
On the other hand, if — as the Emperor Ch'ien
Lung remarks in an edict of the 49'^^ )ear of his
315
reign — the advances were merely verbal, though
the sentence be capital, it must be the invariable
rule to pass over the names of such offenders.
Nor, again, can a man be justly sentenced
to death, if the woman committed suicide only
after considerable consideration {e.g. a month),
and had in fact in the meantime made it up
(P. A. S. P. vol. XVIII. p. 29).
Where the suicide results from a slanderous
attack upon the propriety of the lady, suggesting,
for instance, that she had been too intimate
with her nephew, and that the suggester will
take his affidavit to that effect — the sundry
remarks being sandwiched with strong and nauseating
expressions — the slanderer will be sentenced to
strangulation subject to revision {v. case of Yu
San ^H, P. A. S. P. vol. XXVII. p. 28).
These and similar cases form , furthermore ,
considerations in that intangible portion of Chinese
Law, the Law of Libel and Slander — apart
from their bearing on the ever present Law of
Responsibility.
Where, indeed, the suicide results from any
slight thing said or done, which in any way has
3i6
reflected upon the propriety of the object, the
punishment will be transportation 3000 // distance.
So, in the case of Chu Hsiao ^ /J> , so sentenced
for pinching a young lady in the dark — who
was resting with his inavtorita (H. A. H. L.
vol. XXXV. p. 38): and of Kuei Ning M ^'
who, wanting to say something to his wife, laid
hold by accident oi a friend — who was resting
with her upon the stove bed (H. A. H. L.
vol. XXXV. p. 36): and of Chu Mao-t'ang ^
3^ ^ , who tried to kiss a young lady — who
tumbled over, in trying to get out of his way
in the street. But the offender must have said
something or done something ^ it" m^Wa
^ g # « ♦ * ® H rfn 4#.* Wffi
l^i) ^ S • So Chin Yao ^ Jg , was only
bambooed for doing what he ought not to have
done, when he got drunk one night, and took
a snooze on what he thought was his friend's
bed, but which turned out to be that of an old
maid — the latter committing suicide and
receiving a tablet of honour (H. A. H. L. vol.
XXXV. p. 39).
A curious case is that of the thief Hsu Erh
317
"1^ Zl , who, to avoid pursuit, took refuge under a
lady's couch — and so alarmed the latter, that
she forthwith killed herself For this suicide,
the thief was held responsible, and sentenced
to transportation for three years : the lady, for
killing herself under the trying circumstances ,
and for her nobility of mind, was rewarded with
a posthumous tablet (H. A. H. L. vol. XVII.
p. 1 6).
In connection with the general subject of
responsibility for suicide, there is a peculiar
clause in the Code styled Mi ^ A 5^ ^ i or
the forcing a person to kill himself This is a
consideration of itself, and has no connection
with what has already been stated. Instances
occur — not infrequently — in connection with
robbery. To make a person responsible under
this clause it is laid down, in ordinary cases,
that the offender must be really in a position
to make a person put an end to himself A
wife, however, is held responsible, if she runs
away from her husband, and he poisons himself
(H. A. H. L. vol. XXXIII. p. 37); and she will
be sentenced to immediate execution, if she is
3i8
a naughty woman, and a scold, and her husband
hanes himself rather than mve her a divorce
(H. A. H. L. vol. XXXIII. p. 40). Certain
weighty extenuatory considerations will remove
a case from the clause. Thus it is not deemed
to be making a man kill himself, if he commits
suicide because the prisoner has brought an
action against his brother, for money entrusted
to the latter which the suicide has stolen —
provided the prisoner was not present at the
act ; but semdk, if the prisoner was present,
and pitilessly refused the suicide's prayer for
time, he might possibly be held responsible (H.
A. H. L. vol. XXXIII. p. 63). On the other
hand, a debtor is responsible in a degree, if he
has a fio-ht with a creditor, and the latter hanofs
himself in disgust fid.J.
It is speciall}' forbidden to attempt to commit
suicide in the Palace Lake, or the moat in the
Imperial City — and though the would-be
suicide was sick or poverty stricken, and therefore
could bear life no k^ngrer, he will be canofued
for half a )'ear, receive one hundred blows,
and be sent to servitude on the frontiers. If a
319
person, in a fit of lunacy, intentionally drowns
himself in these forbidden spots, his relatives
will get into trouble ; but they will be excused
if the lunatic fell in by accident (H. A. H. L. Supp.
vol. X. p. 57). And these strictures also apply,
but in less degree, to a spot within the limits
of the court in the Imperial City f i ^ ^ iK ft '
or within the walls of the Palace ^ i§ j^ ft
— places of peculiar sanctity.
, CHAPTER VIII
OFFENCES AGAINST THE PERSON [CONTD.)
— INDIRECT RESPONSIBILITY FOR DEATH
SECTION I GENERAL CONSIDERATION
GENERAL CONSIDERATION
The most curious chapter in Chinese Law is
that dealing with the punisliment of those, who
by misconduct, have in some way been responsible
for the death of another — that is to say, have
caused another's death, though taking no positive
part therein, and not even contemplating it. The
subject has in some slight measure already been
touched upon, but is so important as to need
some attempt at concentration.
This responsibility, then, is of two chief kinds,
accordinof as it arises from the death of a senior
relation, or of one not a relation — and the
former variety is the more curious, and being
GENERAL CONSIDERATION — RESPONSIBILITY OF JUNIOR RELATIONS 32 1
SO, will be dealt with first. But because it is so
dealt with, it must not be taken that it is the
more important — on the contrar)% the wider
application of the doctrine is of quite equal
importance, but requires far fewer cases to
illustrate it.
SECTION II RESPONSIBILITY OF JUNIOR RELATIONS
RESPONSIBILITY OF JUNIOR RELATIONS.
This form may arise, as will be seen, from
a cause of nearly any sort — be it serious and
patent, or trivial, accidental, and ofjscure : but,
once the death of a senior relation can be traced
to the misconduct of a junior relation, no matter
by how circuitous a route the connection between
cause and effect be traced, the junior must
suffer.
The nature of the misconduct, and how
proximate a cause it was to the death, are
matters of weight in consideringf the sentence,
and also the passive knowledge of the relations
KKSrONSIHILITY OF JTMOR RELATIONS
as to the misconduct, or their active approval
and instigation.
In cases of murder, lechery, or robbery, by
a child, no matter how indirectly the child's
offence may be connected with the parent's
death, or whether the parents are killed or
die by their own hand, the sentence is strict
and instant performance of the capital penalty.
Sim])ly becoming liable to a capital sentence
does not, however, bring a child within the
meaning of the above, although the parent's
death be caused thereby (H. A. H. L. vol.
XLIX. p. 52) — and in this large class of cases
the offender is still allowed the benefit of the
consideration of the circumstances by the Board.
So in the case of Cheng Wen-chia M5 I^ ^ '
(H. A. H. L. vol. XLIX. p. 48), a lunatic
capitally sentenced for killing his wife, and in
the case of Meng He Shuang Hsi ^^ "Q
# (H. A. H. L. vol. XLIX. p. 49), capitally
sentenced, for killing his uncle, in defence of
his father — both Chen^: and Menof beine
recommended to mercy.
In the case of Li Ch'iian ^ :^ , it was
RESPONSIBILITY OF JUNIOR RELATIONS 323
decided that, in respect of grave offences —
such as robbery or lechery — committed by a
son, the discovery of which leads to the death
of the parents or parent by suicide or otherwise,
and whether or not the parents approved of
the miseondiict^ the offending son will become
capitally liable ; and in respect of trivial
offences, similarly, the offending son will become
liable to transportation for life (H. A. H. L.
vol. XLIX. p. 4). This decision was, however,
a hard one, and its effect has been modified
[v. cases of Chang Wen-hsiu and Wang Te-
sheng infra).
As to the knowledge of the parents in respect
of the offence, the following distinctions are
drawn : —
(i) Cases where the parent simply knew of
the offence ^ fw * § •
(2) Cases where the parents suffered and
approved the offence IS ^ ^S ^ •
(3) Cases where the offence was committed
at their instigation i||| |3t ~" St ^ •
But though there is, of course, the very
broadest of distinctions between cases coming
324 RESPONSIBILITY OV Jl'NIOR KELAIIONS
under each of these categories, responsibility,
though of varying gravity, attaches to the
son in each and all.
The knowledge of the parents may, however,
lead to a very considerable mitigation in the
penalty. Thus, if the crime be robbery or
lechery, the child is sent to a penal settlement
instead of being straightway hanged ; and in
minor cases, though there is precedent for
sentencing the responsible child to transportation
for life {v. case of Li Ch'iian siipra)^ the better
rule is that the penalty should be mitigated
to three years penal servitude in cases where
the parent approves the offence [v. case of
Chang Wen-hsiu 5R ^ ^ ^""^^ Wang Te-
sheng i#$(i H. A. H. L. vol. XLIX.
pp. 17 & 18).
The whole of this somewhat tangled portion
of the subject has been clearl)- unravelled in
a leading- work. It is therein stated that where
the parents are ignorant of a grave offence
(by which is meant larceu)- or lechery) the
offender is to be sentenced to strangulation
without appeal, if they commit suicide, or are
RESPONSIBILITY OF JUNIOR RELATIONS 325
killed, in consequence. Where the parents
allowed the offence to be committed {i. e.
suffered and approved of its commission), the
penalty is strangulation subject to revision, if
they are killed in consequence, and transportation
to the plantations, if they commit suicide.
Lastly, where the parents incited the offender
to commit the offence (/. e. instigated its
commission), the penalty is three years penal
servitude, if they commit suicide in consequence,
and transportation for life, if they are murdered,
or are otherwise killed (H. A. H. L. vol.
XLIX. p. 27).
An Edict of the Emperor Chia Ch'ing, dated
the 14^^^ day of the 12*^^ month of the ninth year
of his reign, states that the effect of responsibility
attaching to a son for the suicide of the parents
in cases of robbery and lechery committed by
him, is instant strangulation. The Edict further
states, that if the parents were parties to the
offence, the penalty is mitigated — the son
being sent to Siberia as a slave ; and further,
that if the crime leads to the death of the
parents at the hand of others, the ^Jenalty is
326 RESFONSimLirY OK lUMOK RELATIONS
Strangulation subject to revision (H. A. H.
L. vol. XLIX. p. 16). The last points are
illustrated in the case of P'u Hsiao-lao ^
'^J'* ^, who was sentenced to strangulation
subject to revision — his mother who had
been party to his crimes, trying to prevent
the constable from arresting him, and breaking
her neck in consequence of a push the latter
gave her (H. A. H. L. vol. XLIX. p. 17).
If the offending son in cases of robbery or
lechery has committed a capital offence , the
execution is made immediate, if his parent's
or grandparent's death ensue ; and even so
where he would not be capitally liable for
their decease — as where the lechery or robbery
has been committed at their instigation. But
the simple fact that a son has committed a
capital offence leading to the suicide of his
parents does not entail the forfeiture of revision,
if it is not aggravated by lechery or robbery
{y. case of Tung Wen-chung J£ X W H. A.
H. L. vol. XLIX. p. 46).
A woman who causes her parents or
grandparents to commit suicide by misconducting
RESPONSIBILITY OI' JUNIOR RELATIONS 327
herself is not allowed to redeem the sentence —
as is usually done where women are sentenced to
military servitude — but is sent as a slave to
one of the Tartar oarrisons. It is no excuse
where the scandal causes the death of one
of her parents, that the other one approved
of her misconduct. So in the case of M''^ Tung
nee Ch'iian j£ y^ ^ , whose misconduct was
permitted by her grandmother for money, but
was eventually discovered on the birth of a
child — the result being the suicide of her
father through shame (H. A. H. L. vol. XLIX.
p. 21).
A woman who commits adultery, and thereby
causes her father or mother-in-law to commit
suicide, will not be saved from instant
strangulation by the fact that her husband
had condoned the adultery. The consent of
the parents must be shown to entitle her to
consideration of the sentence : that her husband
allowed it, is not enough.
Where the naughty woman's husband is
murdered by her paramour, she is allowed
some grace, provided she gives the alarm at
328 RESPONSIBILITY. OF JUNIOR RELATIONS
once, and is clearly exonerated from all blame
in the matter : but the special representation
allowed to be sent up with the sentence is not
to be made, if it be her father or mother,
actual or in law, who is killed — although, like
the husband, they may have allowed her to
misbehave herself (H. A. H. L. vol. XLIX.
p. 30). Notwithstanding, it would appear that —
whether of right or not — grace is allowed
sometimes. So in the case of M^"^ Li nee Lung
^ ill ^ , the capital sentence was commuted
to transportation, because she straightway gave
the alarm, and by giving full information,
brought the murderer of her grandmother (in
law) to justice (H. A. H. L. vol. XLIX. p. 31).
Some relaxation of the law is allowed where
the erring maiden has reformed in the interval
between her offence and the occurrence of the
fatal consequences. This principle was adopted
in the case of M'"^ Huang nee Yu S^ ^ .ft
— a woman who had misbehaved herself before
marriage, but had turned over a new leaf on
becoming a wife. Here Huang's father-in-law
was murdered by her disappointed lover, and
RESPONSIBILITY OF JUNTOR RELATIONS 329
Huang's sentence, capital in the first instance,
was commuted to transportation for life (H.
A. H. L. vol. XLIX. p. 43).
An offending child who, by divorce proceedings,
or by simple larceny even, causes his parent's
or grandparent's death, but who has been
badly brought up, or has been encouraged by
by his parents to pursue his naughty ways, or
has been instigated by his parents to take to
evil courses, is absolved from all responsibility,
{v. case of Liu Ta-che ^\~)^ ^ P. A. S.
P. vol. XXXII. p. 4).
The case of Ch'ao Cheng-ying ^ IE 1^ >
shows that if the parents' death be caused by
a son who has habitually misconducted himself
in certain respects, but who has in other
respects been a dutiful son, and whose evil
courses have been permitted by the parents,
the penalty incurred will be transportation
only — a clemency not extending to cases
where the misconduct consists of serious offences,
such as robbery or lechery. In the case quoted,
Ch'ao caused the suicide of his mother by
getting into trouble over gambling transactions
330 RESrONSlBlLITY OF JUNIOR RELATIONS
of which she had never disapproved. He was
excused the capital penalty, in consideration
of his generally filial behaviour, and sentenced
to transportation only (H. A. H. L. vol. XLIX.
p. 8).
To judge from the two cases of Hsia Sheng-
t'ai M0:fc and Pai Wu-ssil S^^,
the part that the parents take in the improper
training of their children as a factor in
determining the penalty due is perfectly
immaterial — the sentence in any event being
transportation for life if a parent commits
suicide (H. A. H. L. vol. XLIX. pp. 9 & 10).
In robbery and lechery however, such an
extenuating circumstance, when coupled with
the parent's instigation of the offence itself,
will be sufficient to cause the commutation of
the capital penalty — the only notice taken of
the parent's death being that the sentence
due the offence is increased one degree.
The responsibility may arise from very indirect
circumstances, as in the case of Ch'in Ssu-yiian
^ /S 7C and Ch'in Kuo-yiian ^ tPl 7C •
Here, there were two brothers already in jjrison
RESPONSIBILITY OF JUNIOR RELATIONS 33 1
for assault etc., consequent on a dispute over
a will. Their wives, to cause trouble to the
woman at whose instance they had been laid
by the heels, poisoned their mother-in-law, and
hung' her corpse outside the woman's door —
so that it might appear that the mother-in-law
had committed suicide from grief at her son's
misfortunes. It was clear to the Board that
the Ch'ins w^ere in no sense responsible directly
for their mother's death ; but, as the Board
pointed out, if the sons had not disputed the will,
their mother would not have been murdered —
and that being so, they were sentenced to
transportation for life (H. A. H. L. vol. XLIX.
p. 11). And similarly in the case of Wang
Chu-nao 3E W ^t -, who was transported as
the /o7is et origo niali^ because his brother
murdered his mother, to get some persons
into trouble, for abusing him, by reason of
his digging up their bamboo roots, which had
run into his ground (H. A. H. L. vol. XLIX.
p. 12).
The following is also an instance of
responsibility arising from the most indirect
332 RESPONSIHILITY OF JUNIOR RELATIONS
causes. The offender's mother drowned herself
in a pond, in the hope of gettino- the owner
thereof into trouble — she believing that the said
owner had induced a countryman, who had been
swindled by her son (with her full cognizance),
to bring a charge against the latter. It was
laid down that though no charg^e of want of
duty could be brought against the son, he had
indirectly caused his mother's death, and was
therefore sentenced to transportation for life
(j7. case of Wang Yung-ch'ang v3E M l§
H. A. H. L. vol. XLIX. p. 2).
In a case, however, where the suicide was
really the principal in the offence, the son
merely acting under his orders, the conviction
was quashed — it being held that the father's
suicide was the result of apprehension that he
would be called to account for the offence
that he had himself committed, and not a
case where a son had brought trouble on his
parents {v. case of Ching Ts'ang ^J >^ H.
A. H. L. vol. XLIX. p. 3).
A further good instance of indirectly arising
responsibility is the case of Ti Feng-erh
RESPONSIBILITY OF JUNIOR RELATIONS 333
$^ M, 52» , where the offender trying to raise
a loan, raised the suspicions of the husband
of the woman from whom he had attempted
to borrow the money — leading to his
threatening to beat her and to her jumping
off a cliff and killing herself. As Ti's dispute
with the woman had been settled, and it was
fear of her husband that led to her death,
he was acquitted of responsibility so far as
she was concerned ; but was sentenced to
transportation, in that his father fearing that
he would be taken up, and he thus be left
without support, had hanged himself (H. A.
H. L. vol. XLIX. p. 6).
In the following- case it is hard to see on
what principle the woman was held responsible
for her mother-in-law's death. The said woman
had been decoyed away and sold ; but the
proceedings had apparently not gone further,
when her abductors were arrested. As the
abductors denied their guilt, the magistrate
sent for the woman's husband to give testimony;
and the runners sent to bring him before the
Court failing to find him, got to blows with
334 RESPONSIIJIT.ITY OF JUNIOR RELATIONS
his family, and were not only beaten, but
tied up. Fearing the consequences, the brother
of the woman's husband knocked his mother
on the head, and said that the police had
done it. The woman was held capitally liable,
and, as a measure of grace only, allowed to
commute the capital sentence by becoming a
slave.
In another instance, the offender told his
uncle that he had no right to be always
finding- fault, seeingr that his own son was
charged with robbery. The uncle, a hard
man, utterly upset by the charge — which
had been, as it happened, falsely brought
against his son — was so affected, that he
straightway jumped down the well and ended
his woes. For this, the offender was sentenced
to death — it being his duty to soothe his
relative, not to rub it in (?'. case of Su Jih-
wen ^ H ^ P. A. S. P. App. vol. V. p. i).
If a wife murders her mother-in-law, or
offending against the law of relationship by
termagant behaviour towards those senior to
her, causes her aunt to commit suicide, it is
RESPONSIBILITY OF JUNIOR RELATIONS 335
not the duty of the husband to sympathise
with her — but to give her up to justice. By
sympathising" and faiHng to deHver her up to
justice, the husband becomes liable (and not
liable onl)>) to strangulation, while his wife is
being cut to bits [v. case of Li Chao-hsieh
^■^'M P- A. S. P. App. vol. VII. p. i). If
on the contrary, the husband merely failed to
keep his wife in proper order, he will receive
forty blows and be cangued for a month after
her execution (jj. case of Kao Ch'i-shan
Where the case is one of peculiar gravity,
the offender who is the fans et origo mali
may be sentenced to a more severe penalty
than that apparently due the offence. Thus,
in the case of Chia Ch'eng ^ ^ , a gambler,
(guilty moreover of answering back when his
grandmother took him to task, and of cutting
and wounding a witness against him), was
sentenced to immediate decapitation, as the
original guilty cause of his mother's murdering
his grandmother. This, notwithstanding that his
mother did not commit suicide in consequence
336 RESPONSinn.iTY of junior relations
of his misdeeds, and that he could not have
foreseen the murder (H. A. H. L. vol. XLIX.
p. ii). In another case — that of Tung Hsien-
k'uei ^ fife S — the Emperor refused to
quash the sentence of the supreme Provincial
Court, sending the offender to the plantations
as a slave. This, notwithstanding that the
Board had suggested that Tung was not an
offender of very deep dye, and that the proper
sentence was transportation only. The facts
were the death of Tung's mother at the hands
of his brother, caused by Tung's conviction
for aiding and abetting the sale of a married
woman •, and, though by law the sentence was
scarcely justified, it was a case in which the
sanctity of parental relations came into question,
and His Majesty would not interfere (H. A.
H. L. vol. XLIX. p. 13).
It does not excuse the criminal that the
parent's death was purely accidental, provided
always it arose out of the crime of the child.
Thus in the case of Ch'ang Wen-hsiu ^ ~%
^ , the father who was cognizant of his son's
offence, slipped over a crag, and broke his
RESPONSIBILITY OF JUNIOR RELATIONS 337
neck. The accident occurred when he was
on his way to the Court to which he had
been summoned as a witness. The full penalty,
however, would not in such a case be inflicted,
and Chang- accordingly escaped with three years'
penal servitude, instead of military servitude
for life (H. A. H. L. vol. XLIX. p. 17
and ante).
Even if it is at the hands of the executioner
that the parent meets his death, the child is
still responsible if the parent's crime arose out
of that of the child. In a well-known case on
the point, a father not only approved of his
son's immorality, but of his own motion
committed a deliberate murder to hush the
matter up. Yet the son was sent to the
plantations as a slave, and the usual grace
allowed convicts generally of commuting one
hundred blows of the heavy bamboo to a
nominal flogging was denied him {z>. case of
Chen Ao ^'%i H. A. H. L. vol. XLIX.
p. 19).
The responsibility may arise from apparently
most trivial offences — if the effect be to
338 RESI'ONSIKII.ITY OF Jl'NIOR RELATIONS
cause the death of the parents, and if there
be no excuse.
In one case, the offender's mother hanged
herself because a person brought an action
against hini for depositing his father's coffin
behind the aforesaid i)erson's l)ack-door —
the sentence being transportation (z'. case of
Ch'en Yii-mei |^ W jl H. A. H. L. vol
XLIX. p. 6).
In another case a similar sentence was imposed
on the offender, who was a very good son,
because his mother hanged herself in fear
that he would get into trouble — for slapping
his sister-in-law's face {z>. case of Chli Te-kuo
mnm id.).
Then there is the hard case of Li W^en-
ch'ing ^ ^ pg , who, preferring trade to
agriculture, sold his farm; This proceeding so
distressed his mother, who had no confidence
in his ability to sell coats on commission, that
she hanged herself. Li did not foresee this
action of his mother, but was nevertheless
held responsible and trans])orted for life [id.).
Still harder seems the case of Huano- Hsinor-
RESPONSIBILITY OK JUNIOR RELATIONS 339
chou ^ ^ j^ , — who, in the middle of the
night, went next door to get a Hght from a
neighbour's wife. A quarrel arose from
misapprehension of Huang's motives, and in
its course, the latter interfering to protect his
mother, who had got into a fight with the
jealous husband, prodded the husband in the
stomach. The mother apprehensive of the
consequences of this act, hanged herself —
and Huang was sentenced to transportation in
consequence (H. A. H. L. vol. XLIX. p. 7).
Equally hard seems the decision in Sun T'ien-
kuei's case ^ j^ M i where the suicide seems
to have been caused more by the son having
been swindled out of the balance of money
he had raised to satisfy a gambling debt,
than by the original loss (H. A. H. L. vol.
XLIX. p. 9).
Very curious is the effect of responsibility
displayed in the case of Yang Ta ^ 3^ •
The case commences with the theft of a cow
by Yang Ta — he stealing it at his father's
express command. The theft being discovered,
Yanor Ta's mother rebuked her husband in
/
340 RESrONSIBII.lTY OF JUNIOR RELATIONS
forcible language — to which he objected
strongly, and called on his married daughter
to assist him in doing his wife to death. The
daughter, misliking the business, ran away ;
and the wife, taking advantage of her husband's
unprotected state, laid her plans and deliberately
straneled him. For this the wife was sentenced
to the lingering death ; the son to an increase
in the penalty due for stealing the cow, namely
military servitude with cangue (the penalty
for compassing his father's death under the
circumstances would have been transportation
only) ; and the married daughter to sixty
blows and a year's transportation — being one
degree more severe a sentence than that of
one hundred blows, to which as an outsider
she had become liable by neglecting to give
the alarm.
An adopted child may be held responsible
for the death of his adopted parents or
grandparents — thougli not, it would seem,
invariably. In the case of Lo Chao-wen ^
^ ^ it was laid down, that as Lo had
been maintained for a considerable period
RESPONSIIULITY OF JUNIOR RELATIONS — RESPONSIBILITY OF OTHERS 34I
;S # £ :A and established in life gli ^
^ ^ , lie was responsible for the death of
his adopted grandmother — who had committed
suicide on the discovery of a theft perpetrated
by him at her instigation (H. A. H. L. vol.
XLIX. p. 19).
In another instance, a woman was sentenced
to three year's penal servitude for obeying
her adopted mother's instructions to play the
harlot — the old lady hanging herself on the
case becoming public {v. case of M^'^ Wu 7Me
I-i ^ :^ ^ ^(^■)-
SECTION III RESI'ONSIBILITY OF OTHERS
RESPONSIBILITY OF OTHERS
The law of indirect responsibility does not,
from this view, supply such curious examples
as is the case where relationship is concerned
— but the bearing is wide and singular
enough. It is noticeable that adultery affords
the best instances.
342 RESPONSIBILITY OF OTHERS
If an injured husband kills his wife, the
paramour will be held accountable for the death
and sentenced to three years' transportation ;
and if the husband, after killing his wife,
proceeds to commit suicide, the penalty is made
a degree heavier, and the paramour will be
sentenced to one hundred blows and transportation
for life (H. A. H. L. vol. XXVI. p. 8). If
furthermore (a very good example) the relations
of the husband or wife commit suicide, unable
to bear the thought of his sorrow or her shame,
the paramour will be liable and sentenced to
decapitation. And so, again, in a somewhat
strange case, wherein a complaisant husband
laid a charg^e of treason aorainst the adulterer,
because the latter would not pay a sufficient
fee ; in consequence of the charge , many
innocent people came to grief — and the law
holding that the trouble arose out of the
adulterer's misplaced affection, visited him with
the consequences (H. A. H. L. vol. VIII.
p. ii). And so also, in a more strained sense,
of mere slander regarding another's wife — if
the jealous husband kills her, the slanderer
RESPONSIBILITY OF OTHERS 343
will be capitally responsible (H. A. H: L. vol.
XL. p. 31), and the jealous husband, under
special grace, may be excused with three years'
transportation. And thus of slander causing a
woman to commit suicide : and, scmble (in
such case — but in a measure only) even of
unconscious slander — as where 'the cat is let
'out of the bag' ^ P ^ ^ •
General impropriety affords numerous
instances ; as in the case of Han Ssil-fu ^ /S iJ/t '
wherein the offender, knowing that a certain
damsel had misconducted herself, took her
round the waist — and the woman in turn
resisting, seized the offender by his cue, and
made so loud an uproar, that the aggressor
slapped her on the face, and proclaimed what
he knew about her. In rage and shame the
woman hanged herself. As the woman was
not virtuous, and the offender did not succeed
in his attempt on her, the Board did not
claim that he should be sentenced to death ,
but considered that he should be transported
for life 1000 // from home (H. A. H. L.
vol. XXXV. p. 2).
344 RKSPONSIHIUTY OF OTHERS
There are of course many examples to be
(^iven besides merely adulterous or improper
ones. For instance, if the result of a fight,
supervening on a quarrel arising out of unfair
competition on the part of another, is the
accidental killing of a man who interferes, the
unfair competitor, as being fons et origo mali^
will be 'held in a measure responsible for the
death — but in a measure only, and not
under the clauses relating to homicide etc.,
but under the general clause dealing with
doing what ought not to have been done,
and eighty blows only will be awarded [v.
case of Wang Chen-wen 3E S ^ H. A. H.
L. vol. II. p. 25). And again the curious case
of Kao Yung-hsiang j^ y^^ jji^ , wherein it
appeared that a certain Kao, a Court attendant,
by putting leading questions to a prisoner
under examination in a certain case, had
extracted from him a false declaration that
an innocent person was concerned in his offence
— leading to the said person dying in prison.
To give false evidence against a person is
identical with bringing false accusations ; and
RESPONSIBILITY OF OTHERS 345
to make a man swear to what is false is very
much the same thing' asdehberately inducing him
to do so. Kao was therefore held responsible
for the death — the penalty however being
reduced (H. A. H. L. Supp. vol. XVI. p. 30).
Instances of this wider and important bearing-
will be met with most commonly in connection
with the particular offence in point - — i. c.^
murder, manslaughter, or suicide (^. 27.).
CHAPTER IX
OFFENCES AGAINST THE PERSON
{CONTD.) — ASSAULT ETC.
SECTION I GENERAL CONSIDERATION COMMON AND
AGGRAVATED ASSAULTS IMPORTANCE OF WEAPONS
ETC. — INFLUENCE OF RELATIONSHIP
GENERAL CONSIDERATION
The term is not so comprehensive as with
us, but the law on the point is relatively far
more considerable. In strictness the term includes
only assault and battery |Sx 'JT : there is rarely
any difficulty in determining whether a certain
act is an assault or not within the meaning
of a specific section of the Code : there rarely
arise any questions such as an assault by
construction {v. fatal assaitlt — infra however).
There must be some demonstration or exercise
of physical force in excess of the requirements of
the circumstances and accompanied by mens rea.
GENERAL CONSIDERATION — LIMIT OK TIME 347
The law hereon is bulky by reason of the
preciseness of definition , and the variations
consequent thereon. Of necessity it is of
importance to consider the kind and extent
of the injury, and the mode by which it was
committed , the intent of the assailant , and
the relationship of the parties From its own
nature, and that of this book, the subject has
been dealt with incidentally, but the points
herein concentrated should be marked.
Limit of time. — As in homicide, so in
assault, certain limits of time have been fixed
for the purpose of regulating the responsibility
of the doer of the injury.
The same considerations arise here as in
homicide — viz. the nature and extent of the
injury in the first instance, the manner in
which inflicted, the subsequent cause of injury
or aggravated injury, the class of offence in
the first instance, and the consideration of
relationship.
If a wound has been inflicted with a stick,
or -the hands, or feet, or any non-lethal weapon,
and the injury is apparently not considerable,
348 GENERAL CONSIDERATION — DEFINITIONS
a period of twent)- da)s is required. If the
wound has been inflicted with a sharp instrument,
with fire, or with scalding water, a period of
thirty days is required. If bones have been
broken or dislocated, or violent bodily injury
has been inflicted, or the victim is a woman or
child, a period of fifty days is required. If
within the above stated periods the victim
recovers, and no permanent injury remains, the
penalty due the offender is reducible two degrees ;
if, on the other hand, permanent injury or
disability remains, after a recovery from the strict
effects of the wound, the offender becomes liable
to the full penalty for such aggravated injury.
Definitions. — Assault cases are styled ^ S^
^ ^ : the person who commences an assault
i§ ^5 : and the person guilty of an assault Hj^
COMMON AND AGGRAVATED ASSAULTS
A common or simple assatdt is an assault
causing no injury, or but slight injury,
committed with a non-lethal weapon — ^-^g-^
with a stick, a hand or a foot. It is punishable
COMMON AND AGGRAVATED ASSAULTS 349
with penalties varying from bambooing to
transportation for life. To drag a woman into
the street 5|f o o tft tU ft .JL , hurt her breast
:fg ^ ^$1 ' and butt her nose with the head
^ ^ ts ^ ^^ 1 is an assault — although
there are no marks, and although the woman
owed her assailant money. The penalty herein
will be sixty blows and one year's hard labour.
To beat cruelly J|^ ^ =S S5 , would generally
be considered a simple assault.
The following are instances of aorgrravated assaults.
An assault causing serio7ts bodily Jiarin H^ y\
^ 'jg ^ is an assault committed either with
lethal weapons or causing serious bodily injury.
Strictly the term implies to make a cripple ^
^ of another. The offence is variously punishable
by transportation in varying degrees or capitally.
Mere cutting and wounding {v. also next topic) is
not punishable capitally; but under certain special
circumstances of aggravation it may be so punished
— as where the injury was very serious {c. g. , to
gouge out a person's eyes ^ ^J' A ^R Bp3 ' to
slice off a person's ears, nose, and tongue ^
-t^ A ^ ^ "5 ) • oi* where the cutting and
3 50 COMMON AND AGGRAVATED ASSAULTS
wounding was aggravated by another offence as
attempted rape , when the sentence will be
strangulation — and if aggravated by actual
rape the sentence will be decapitation, and this
whether it be the victim who was cut and wounded
or her parents and relatives. That the weapon
was wrested from the parents hands is no defence
{z>. case of Liang Yung-ch'ang ^ ^ '^ H.
A. H. L. vol. LII. p. 17).
An assault ?i>if/i intent to merely kill (not to
murder) is simply treated as assault — common or
simple if no serious damage be done, but aggravated
if fire-arms or lethal weapons are used. A
curious case on the point is that of Feng Hai-
ning ^,^ */^ @ , who being angry with a father,
passed his wrath on to the son, and cut his
throat on sudden impulse. Here the Board
decided that it was a case of aorgravated assault
with lethal weapons (H. A. H. L. vol. XXX.
P- 51)-
An assault without intent to kill, but ending
fatally, is a fatal assault^ carrying the penalty
of strangulation execution deferred. If the assault
lead eventually (but after a considerable period)
COMMON AND AGGRAVATED ASSAULTS 35 1
to death, the penalty is transportation for life.
A mere challengfe to figrht is considered a fatal
assault (v. Accidental Ho^nicide) .
An assault with intent to murder is a capital
offence, though unsuccessful. If the assault be
upon a man whom the offender had dishonoured,
the woman, though ignorant of the offender's
design, will be transported for life as an accomplice -,
but she will not be liable capitally, if the offender,
in attempting to assault the husband, assaults
others by mistake and kills them : and she will
not be liable in any measure if the marriage
had not been properly consummated (H. A. H.
L. vol. XXIV. p. 35).
An assault committed within a privileged locality
may justly be considered as, in a sense, an aggravated
assault — inasmuch as the offence entails aeeravated
penalties. So a simple assault committed within the
precincts of the Imperial Palace is punished at
the least with one hundred blows : an assault
therein with the infliction of a cutting wound
entails two degrees heavier penalty than in
ordinary cases : an assault committed within " the
presence chamber or audience hall entails a
352 IMPORTANCE OK WEAPONS: SIGNIEICANCE OF 'DISABLE', 'MAIM', ETC.
penalty of one hundred blows and transportation
for life to a distance of 3000 li.
IMPORTANCE OF WEAPONS : SIGNIFICANCE OF
'disable', 'maim', ETC.
If weapons be used, the nature thereof, is, as
will have been already gathered, of great importance
in determining a case — often out of proportion
to the actual bodily injury done : so to wound
another with a gun or pistol shot Mi ^ .ft is
^T ^y^ m J^ is more serious than to wound him
with a sword — though the injury in the latter
case be the more serious : and to wound with
a sword or sharp instrument T] "m is more
serious than to inflict the injury with a heavy
club. To wound with a murderous weapon
generally is styled 7L 5jg= fw A. •
The Chinese expressions corresponding to
'disable', 'disfigure', 'maim' etc., have a very real
significance. It maybe of considerable disadvantage
to a woman — even to a man — to be deprived of
good looks (and a slash across the face has
certainly an unsightly appearance) ; but the mere
deprivation of good looks caused by a slash,
IMPORTANCE OF WEAPONS : SIGNIFICANCE OF 'DISABLE', 'MAIM', ETC. 353
not otherwise injurious, in no way impairs capacity
to work for a living, and will not be punished
so severely as to remove, say, an eyebrow ;
and a slash across the back of the head,
though doubtless startling and painful will not
be so severely visited as the removal of the
little finger — unless, indeed, the brains ooze
from the said slash. Again it is more serious
to render a person's private parts useless ^
J^ y\. I^ 1^ than to cut off his nose — for
it is perfectly easy to do without a proboscis, and
false noses can be procured. On the whole of
this question the law has been laid down with
nicety, and the legal expense incurred for injuring
teeth, fingers, toes, hair, ribs, e^es, tongue,
backbone etc., carefully assessed. So to break
two fingers, two teeth, two toes, or to tear away
all the hair of the head, is punishable, in each
case, with sixtj- blows and transportation for
one year — a somewhat cheap rate. To break
a leg, an arm, or to destroy an eye, on the
other hand, is punishable with a penalty of
one hundred blows and transportation for three
years.
C. E. G. 23
354 INFLUENCE OF RELATIONSHIP
INFLUENCE OF RELATIONSHIP
This is, as usual, very great — in especial with
the closer relationships {v. RelationsJiif).
The principal assaults into which considerations
of relationship enter are as follows : — assaults
on parents or grandparents ; assaults on husbands •,
assaults on relations generally in the first,
second, third, fourth, or fifth degree ; assaults
by a wife on her husbands relations, or upon
children by a former husband ; assaults by widows
upon the parents of their deceased husbands ;
assaults on relations without the ordinary five
degrees ; assaults by pupils upon their masters,
or by servants or slaves upon their masters, or
by slaves upon free persons ; assaults on persons
of privilege and officials. The majority of these
points have already been dealt with, and but
a few words are now offered on that last
mentioned.
To strike an individual of the hnperial Blood,
though not within the degrees of relationship to
the Emperor, entails sixty blows and transportation
for one year : to slightl)' wound such a person.
INFLUENCE OF RELATIONSHIP 355
entails eighty blows and two years transportation :
to inflict a cutting wound, entails a punishment
not exceeding lOO blows and three years
transportation. For a private person to strike a
high official entails i oo blows and transportation
for three years, i oo blows and transportation for
life to a distance of 2000 //, or strangulation
subject to revision, according as it was a mere
striking, or striking so as to cause a slight wound,
or striking so as to cause a severe cutting wound.
The penalty in these cases is reduced, where
the official struck is not a high official; but is
in no case to be reduced so as to render the
punishment less than one degree more severe
than in ordinary cases. The rules regulating the
penalties where officials strike and wound each
other are numerous and not particularly interesting
— minute distinctions being drawn as to respective
grade, jurisdiction etc. etc.
356 FALSE OR UNLAWl'Ul, IMl'RlSONMr'.NT ABUSIVE LANGUAGE
SECTION II FALSE OR UNLAWFUL IMPRISONMENT
ABUSIVE LANGUAGE.
FALSE OR UNLAWFUL IMPRISONMENT
Any unlawful detention or restraint of a person
is an 'imprisonment'. The term in strictness,
however, applies to those, who having disputes
with others, instead of obtaining the proper legal
remedy, carry away their opponents, and detain
them in private places. This offence in punishable
with eighty blows; but if the person or persons
so seized sustain severe injury in consequence
of the imprisonment, the offender or offenders
are liable to a punishment two degrees more
severe than in ordinary cases; and, if death
result, to strangulation subject to revision.
ABUSIVE LANGUAGE
''Mere words can never amount to an assault".
This is as true in Chinese as in English Law
— but though mere words may not be punishable
as an assault, they ma)' )et be punished — and
it ma)' be with severity — under the sections of the
ABUSIVE LANGUAGE 35
Code relating to abuse. It must be understood
that by abuse is herein meant strong and exciting
language ; and, moreover, the tone in which the
laneuasfe is delivered is cog-ent in considerino- its
strength or excitement. Slanderous lanp-uao-e is
not included within the law on this point.
The reason given for the legal discipline hereon
is that abuse is not unlikely to provoke a breach
of the peace, not only as between the parties
themselves, but in regard of bystanders.
The offence is variously punished according
to the relationship of the parties concerned.
Between equals, a penalty of ten blows is
inflicted ; and if they take to mutual abuse ten
blows each. To abuse parents or grandparents
entails strangulation. For a slave to abuse his
master also entails strangulation. To abuse
officials generally is punished with loo blows.
CHAPTER X
OFFENCES AGAINST THE PERSON
[CONTD.) — RAPE ETC.
SECTION I GENERAL CONSIDERATION
GENERAL CONSIDERATION
Strictly speaking, the offences dealt with in
this chapter are part of the Law of Morality,
and, at nearly every turn in the discussion of
these offences, moral sentiment is introduced.
Many are the tablets awarded those virtuous
women who from a dainty fear have destroyed
themselves : and often in the Reports do the
phrases occur — 'unable to overcome her anger
'and shame she jumped into a pond and drowned
'herself ^ i1^. ^ S ^ ^JC gl ^ , ^poisoned
'herself Wi^% ^ etc. China is a highly
moral country — highl)- moral, but impropriety
GENERAL CONSIDERATION — RAPE 359
is particularly common, is the inevitable conclusion.
On the whole, this class of offence is treated
with great jfineness of distinction — a peculiarity
probably most clearly emphasised in the case of
abduction. Other notable points are the general
severity of the punishments, and, where they
are concerned, the natural leaning of the law
on the side of the woman — 'because of the
'importance of a woman's reputation' |^ 0, 5w
SECTION II
RAPE
This offence includes actual and attempted
rape and indecent assault — and in some measure
unnatural offences.
It is essential that the offence be committed
without the consent of the other party : the
amount of force used, and die results thereof,
are considerations for aggravation.
36o
As regards consent, not only is it sufficient
to take an act out of the category of rape that
the consent be given precedent to the carnal
knowledge, but also that the consent be given
subsequent to it, but before completion 3S '^
l^ f^ )& M # ?1S ife . It will however be rape
if, although consent has been given, the patient
cry out before completion, and the prisoner has
employed force to effect his purpose (v. case of
Wu Ch'i-lu ^^M H. A. H. L. vol. LII.
p. 12); but the penalty is mitigated in the
latter case — if e. g. , the prisoner has
killed the patient, from decapitation certain, to
decapitation subject to revision. It is looked upon
as rape if the consent has been forced from the
woman by worrying her for money she owed
the prisoner (H. A. H. L. vol. LII. p. 22): or
where the prisoner pretended that he had already
effected his purpose while the woman was asleep
{id^ : or w^here drugs are employed (/V/.) : or
where she is merely frightened into compliance
^ 5iM ^ '1^ • Bi^'t it is not apparently looked
upon as rape t(3 carnally know a sleeping woman,
if there is no resistance [id).
36 1
The penalty for ordinary rape is strangulation
subject to revision (H. A. H. L. vol. LII. p. 17):
if with force, the penalt}- is strangulation certain:
if causing death, decapitation certain {v. supra).
If the victim is given to improper courses, the
capital punishment will be commuted [v. case of
T'ien Wen-hsing ffl ^ Jft H. A. H. L. vol.
LII. p. 4 — and cases p. 20) : and it is strongly
laid down in case after case that clear distinction
must be drawn between instances where the
victim had no claims to virtue, and those wherein
chastity was attacked {v. case of Kuo Ching-a
115 fS ppf H. A. H. L. vol. LII. p. 3) The
law however allows of repentance even in
abandoned women, and a gallant will be guilty
of rape to the full penalty if he forcibly carnally
know a reformed bad character, although previously
known to him only in the capacity of a dissolute
^H ^ ^ ^ — a creature incapable of moral
regeneration. The return to virtue must be real,
and the woman must not simply have thrown
over her acquaintance because she was tired of
him, or because he had no more mone)-, or
because she preferred a handsomer man. On the
362
other hand the return may be made at past the
eleventh hour — as where a willing dissolute squalls
out midway (H, A. H. L. vol. LII. p. 1 3).
As regards children. Distinction is herein drawn
as to the rape of a child under twelve and
under ten )'ears of age — but no distinction is
drawn as to sex. As respects consent ; in the
case of a child under twelve its consent is of
no weight, unless it has previously gone astray —
in which case the full penalty will be commuted
to transportation (v. case of Ch'ih Chu-erh
Stt I!* H. A. H. L. vol. LII. p. 15). Under
ten, consent is in no case of any weight (H. A.
H. L. vol. LII. p. 16).
Rape of a child under twelve is punishable
by decapitation subject to revision-, and if the
child's death be caused by injuring it during the
rape, however unintentionally, the sentence will
be carried out at once {v. case of Wu Yun-ts'ung
:K#^ H. A. H. L. vol. LII. p. II).
Rape of a child under ten is punishable by
decapitation without appeal as a scoundrel yt tM •
and, where a ruffian not only rapes, but chokes,
a child of so tender an age exposure of the
363
head will be added (H. A. H. L. vol. LII. p.
1 5). If the offender be but a youth, and stops
midway, a representation may be made to His
Imperial Majesty of any mitigating circumstances,
and the execution of the sentence may be deferred
for consideration [v. case of Sun Hsiao-lien ^
/h ji H. A. H. L. vol. LII. p. 10 — >nd
case of Tuan Ssil ^ ^3 H. A. H. L. vol.
LII. p. 9).
Successive rape ^ ^ is an heinous form of
ordinary rape, and is visited with decapitation
without appeal for the principal, and strangulation
subject to confirmation for an accomplice. If the
victim of successive rape die of exhaustion, the
case is not treated as murder, but as causing
her death without intent to do so, and is punished
in the same way as if she had committed suicide —
in either case, the penalty being decapitation
without appeal for the principal, and immediate
strangulation for the accomplice. In the case of
successive rape aggravated by murder, the
principal will be decapitated and his head exposed,
and an accomplice decapitated (H. A. H. L.
vol. LII. p. 4).
364
As regards attevtptcd rape ^^ W: y^ WL-<
the penalty for an ordinary offence is one hundred
blows and transportation for life to a distance
of 3000 li (H. A. H. L. vol. LII. p. 17). If
the attempt has not gone beyond a little fumbling,
the full penalty will generally be commuted ; as
in the case of Ku Liu ^ y>» , who, sleeping
in a brothel, took indecent liberties with a female
lying upon the same stove bed — proceeding
no further on her crying out, the penalty was
commuted to servitude for three years (H. A.
H. L. vol. LII. p. 14). And again in the case
of Fan Yu-chin ^ '^ ^ when the liberties
proceeded rather far, but the sentence of permanent
transportation was declared erroneous (id.).
It is a capital offence to cut and wound the
victim in attempting her honour, and to use
edged weapons : but there must be cutting, and
with edged weapons. If the victim be injured
in an)- other way, the sentence of transportation
will be increased to militar)- servitude i^o. case
of Li Hsueh-hsieh ^SS H. A. H. L. vol.
LII. J). 20). Causing miscarriage, though ol an
eiorlit months' old child, does not make an
365
unsuccessful attempt at rape capital {v. case of
Li Fa ^S H. A. H. L. vol. LII. p. i);
and, in the case of Wang Hu-tzit ~F ^ ~f^ ^
it was authoritatively laid down, that merely
procuring miscarriage by the offence is additional
"injury by means of other than sharp
"instruments" (id.).
The definition of a 'child' in attempted rape
is a person under twelve years of age, and the
penalty for raping such a person in ordinary
cases is military servitude (H. A. H. L. vol.
LII. p. 15). To take a child of nine into a
barn, with intent to carnally know her, and she
consenting, is held attempted rape ; as in the
case of Wang Ching-chou 3E ;^ >^ — the
offender herein , out of consideration for his
tender years (fifteen) was sentenced to a mitigated
penalty of temporary banishment (H. A. H. L.
vol. LII. p. 7).
It is considered a case of attempted successive
rape, if two offenders had the intention of
successively ravishing the victim , although ,
assistance coming at the crucial moment, neither
of them succeeded (H. A. H. L. vol. LII. p. 20).
366 RAPE INDECENT ASSAULT
Rape, successive rape, or attempted rape
by officials upon those within their jurisdiction,
involve, in each case, two degrees heavier
penalty than in ordinary cases : and, it may
be added here , that a similar aggravated
penalty attaches where the offences chanced
during a period of mourning for parent or
husband.
SECTION III — INDECENT ASSAULT — FORNICATION —
UNNATURAL OFFENCES — CARNAL OFFENCES CONTRARY
TO. RELATIONSHIP PROCURATION
PROCURING ABORTION
/
INDECENT ASSAULT
The Chinese do not appear to make a
distinction between this and attempted rape,
so far as the classification of the offence is
concerned — but consider the circumstances in
the sentence. It is ordinarily punished with
transportation of one kind or another, whether
the offender desisted on resistance being offered
or consequent on the interference of bystanders
FORNICATION 367
{v. case of Wang Pu-t'ing 3E ^ ® H. A. H.
L. vol. LII.p. 19). The gravity of the punishment
varies according to the gravity of the assault ;
so an indecent assault upon a child twelve
years' old was punished with one hundred
blows and three years' transportation — the
indecency being but moderate (H. A. H. L.
vol. LII. p. 15): and in another case, with
an accompaniment of circumstances of rather
greater indecency, the offence was punished
with transportation for life (zd.).
FORNICATION
This is punished with eighty blows, and the
pander is liable to seventy.
An unnatural offence (^. zj.) upon an adult,
or a boy over the age of twelve, in either
case subject to the consent of the parties, is
treated as a case of fornication somewhat
aggravated — both parties receiving one
hundred blows and one month's cangue, and
the person permitting it in his house being
punished as a pander (H. A. H. L. vol. LII.
p. 27).
368 UNNATURAL OFFENCES
In regard of officials, fornication with those
within their jurisdiction entails a penalty two
degrees heavier than in ordinary cases — -
the other party is however punished as in
ordinary cases.
Two degrees heavier penalty is also added
when the offence took place during a period
of mourning for parent or husband.
UNNATURAL OFFENCES
Such are treated in the same way as
ordinary immorality, no distinction being made
between male or female.
An unnatural offence is variously considered,
according to the age of the patient, and whether
or not consent was given. If the patient be
an adult, or a boy over the age of twelve,
and consents, the case is treated as one of
fornication — and both parties are punished
under the clause relating thereto : if the adult
or boy over age resists, the offence is considered
as rape — and the penalty in accordance : if
the boy be under twelve years of age, the
offence is considered as rape, with the penalty
CARNAL OKKENCES CONTRARY TO NA'.UKAL REI.ATIONSIIIl' 369
therefor — irrespective of consent or resistance,
unless the boy has previously gone astray {v.
Rape) — (H. A. H. L. vol. LII. p. 19).
It doubtless appears strange that abominable
offences should, on the whole, be treated with
but ordinary severity : but such offences are
regarded as, in fact, less hurtful to the community
than ordinary immoralit)'.
CARNAL OFFENCES CONTRARY TO NATURAL
RELATIONSHIP
Adultery. — The penalty for this is military
servitude for the adulterer ^ ^ , and
imprisonment for a period and a flogging for
the naughty woman ^ ^ . If the husband
was a consenting party, the adulterer will
receive the mitigated sentence of one hundred
blows and three years' transportation, the woman
will receive ninety blows (actually administered)
and transportation for two years' and a half
commutable by fine, while the complaisant
husband will receive ninety blows {v. case of
Jen Ch'ao-tung ft M9 ^ H. A. H. L. vol.
XX. p. 28).
C. E. G. 24
370 INCEST
If the offence take place during a period of
mourning- for parent or husband, an aggravated
penalty of two degrees attaches.
If the offence be committed by an official
upon one within his jurisdiction, a similar aggravated
penalty attaches.
The offence is, despite the number of cases
thereon, not extremely common ; for Chinese
women, contrary to the received opinion, are
peculiarly particular, and will hang themselves
without hesitation '|^j| 0 § tt \(i ^ if their
reputation be aspersed, however slightly — ' [^
S ^ ^ fS SS 4. — "f this several instances
have been given. The offence is mostly important
by reason of the incidental points, such as homicide
and general responsibility, to which it often gives
rise {v. especially Relationship — Husband and
Wife - — yiisiijiable Homicide^ and Murder).
hicest. — The prohibited degrees of relationship
include, not only the usual five degrees, but also
relationships still more remote. The offence is
throughout punished with great severity. So to
hold criminal intercourse with relations in the
filth degree, is punishable witli transportation for
PROCURATION PROCURING ABORTION 37 1
tliree years and one hundred blows. If in such cases
a rape is committed, decapitation is incurred.
To hold criminal intercourse with a step-child is
similarly punishable. To hold criminal intercourse
with relations more remote than the fifth decree, is
punishable with one hundred blows — and if in such
case a rape is committed decapitation is incurred.
PROCURATION
It is against the law to buy respectable people
for improper purposes. A divorced wife cannot
be considered altogether a respectable person
(H. A. H. L. Supp. vol. XIV. p. 31).
PROCURING ABORTION
This is not capitally punishable, and a person
actually administering the noxious thing is only
liable to transportation for life — even although
the woman dies. If the share taken by the
offender was merely to procure the noxious thing,
and although fatal results ensue, the sentence
of one hundred blows and three years' transportation
will be imposed — commutable in the case of a
female offender by fine (H. A. H. L. vol. LI. p. 80).
372 ABDUCTION
To procure abortion by use of drugs is styled
M '^ ^T Up : death resulting from flooding is
styled Jit JjS: 11 a& 3- 5E . ^
SECTION IV — ABDUCTION
ABDUCTION
This offence is complete once the woman has
been carried away from the spot where she was
seized — rescue or no rescue ^ $? fe :^ ^ Si
nrnnrni^ m e j& n m (h. a. h. l.
vol. VIII. p. 55). It is ordinarily punishable with
military servitude, but if with great violence, in
bodies, or followed by violation, capitally.
The character of the offence differs according
to the circumstances under which the woman
was carried off — such as the use of force (forcible
abduction Ifr ^), and the number of those
engaged in die offence (the latter point of
such importance as to need separate individual
consideration) — and further accordino^ to additional
ABUUC'llON 373
circumstances, such as violation. The position of the
woman in the moral scale is also a consideration of
great cogency. That well-known saying in Chinese
law that ''to abduct a woman is worse than
"to kill her" ft H « M K (i f^' :^ a is
frequently laid down as a rule — and so treated
it is not clearly explicable. It is submitted that
it is simply a saying — one of the merely moral
oracular Chinese dicta : the position of an abducted
maiden is morally so grave (and practically liable
to such obnoxious public comment) that she ought
not to find life worth living.
It is no excuse that the prisoner's intentions
were honourable — as, for instance, to relieve the
woman's misery, where her former husband had
beaten her and turned her out of doors (H. A.
H. L. vol. VIII. p. 38). It is no excuse that
the woman was seized as a deposit merely —
to induce the husband to pay salvage money
due the abductor {zk the Life-boat case H. A. H.
L. vol. VIII. p. 46). It is no excuse that the
woman ran away with the prisoner, if he keeps
her with him and passes her off as his wife —
even a mere mistress of another {zk case of
374 AliDUCTlON
Liu Ken-ch'eng ^J tS l/lic H. A. H. L. vol.
XX. p. 27). And even if a woman runs away
entirely of her own motion to another's house,
the latter, if he allows her to stop with him,
will get three years' transportation and one
hundred blows (H. A. H. L. Supp. vol. VII.
p. 21).
It is not permissible for a person to abduct
his own wife after he has given her a bill of
divorcement — even though merely with a view
to make the second husband pay up the marriage
portion (H. A. H. L. vol. VIII. p. 44). It is
not permissible to abduct the slave of a relation,
although in a measure property (H. A. H. L.
Supp. vol. III. p. 58); the offence is not so
serious, however, as carrying off the slave of
one not a relation {id.).
Even where the offender had in some sort a
good right to carry off the woman, and was in
simple ignorance of fact for which he was not
responsible, the ordinary penalty is not much
mitigated. So in the case of Li Tzit ^ 7^ ,
wherein the offender had arranged to marry a
widow, and had paid the marriage portion to
ABDUCTION 37 5
her friends, thoug-h the marriag-e contract had
not been delivered i\jC g m K§. * In 0 S •
Her friends subsequently determined to break off
the match, and sent back the presents ; but the
offender knew nothing about it — as the person
entrusted with the return of the presents
appropriated them himself. Hearing that his
intended's friends were sending her away, and
suspecting they meant to marry her to someone
else, the offender carried off the woman, but
did not force her to complete the marriage.
For this the abductor did not indeed receive
the full penalty, but was sentenced to transportation
for a term (H. A. H. L. vol. IX. p. 34). The
case of Li Hsiao-yang ^ /]> ^ seems even
harder. There the offender carried off and compelled
to marry him a woman who was perfectly agreeable,
and whose friends had accepted his wedding gifts,
and the penalty of transportation for life was
adjudged — as it appeared that the relative
who had arrano-ed the marriag-e was not the one
legally entitled to do so [id.). The Authorities,
however, admitted that there was some ground
for the offender's action ^ |p^ /^ ^ .
376 AliDUCTlON
The followinof are considerations for substantial
mitigation or complete extenuation : - — {a) where
the woman is returned by the offender, and the
latter delivers himself up to justice : (/?) where
the woman had no claims to regard.
In respect of the latter point, a woman who
has been sold and resold without objection,
cannot claim that her reputation has suffered by
her abduction : nor can a woman who has been
put up for public sale ^ ^ ^ 'i^ : nor can
one who has passed through a broker's hands,
whether in obedience to parental orders or
otherwise — but herein if she be sold to a
respectable family she becomes a respectable
woman g* |f R A 9< M W M ^ M S A-
A divorcee is considered to have no claims to
consideration, and much less a woman who has
remarried before her late husband is well cold
(H. A. H. L. vol. VIII. p. 31). A woman
with whom the abductor has been very intimate
is also no fit subject for consideration (H. A.
H. L. Supp. vol. III. p. 57); and though great
violence w^as employed in carrying her off, the
sentence will be simply transportation for life
ABDUCTION 377
instead of capital {id.) — a certain amount of
violence is permissible between intimate friends.
And in this connection it is of the utmost
importance in cases of abduction to determine,
not merely what degree of intimacy (if any)
existed between the actual parties, but also how
intimate the abductor was with the family of
the woman abducted. In regard of the creneral
question of intimacy, such considerations as these
are considered cogent : — Were the parties
merely accustomed to visit each other from time
to time.? (z. c. on merely visiting terms ^ ^^
fi ^ ) : was she accustomed to meet him without
running away .? |?| o o p Jl. ^ S : did she
avoid him after she had grown up and see him
no longer } fe ^ ft ^P S /§» ^ ^ • Further,
the word 'intimacy' does not necessarily imply
immoral intimacy ^- ^ ,
A question of much force in the determination
of the offence is as to the number of those
engaged therein. It makes all the difference
whether one or more offenders were concerned.
If two were engaged, the principal will be
sentenced to decapitation subject to revision, and
378 ABDUCTION
the accessory to transportation for life. And,
again, it makes a great difference whether
more than two were engaged ; for, in that case,
the principal will be sentenced to immediate
decapitation, and the accessories to strangulation
subject to revision — whether the woman was
maltreated or not, and (contrary to the general
rule) whether or not the woman was actually
removed from the spot (H. A. H. L. vol. VIII.
P- 50).
As regards the revision • of the sentence of
strangulation for the accessories, it was provided
in the 5^^ year of Taokuang that in the following
cases the sentence should be confirmed. Where
the accomplice entered the house, or if- the
woman was violated, where he assisted in
dragging her off, although not actually entering
the house : where the accomplice had been
engaged in joint abduction more than once :
where he assisted in putting pressure on the
woman, thereby causing her death, or where
the death of a person who tried to arrest the
offenders was caused by resistance thereto —
whether the accomi)lice himself was physically
A)5DUCTION 379
responsible for the death by actually wounding
the intervener, or whether the accomplice merely
lent his countenance to resistance : where the
woman had been sold and cannot be traced :
where the abduction was by two or more in
the open air — the accomplice taking actual
part therein. All other cases with the revised
capital penalty were to be entered on the List
of Cases Reserved, with a view to their
commutation (H. A. H. L. vol. IX. p. 51).
If the joint abduction be of a dissolute, the
penalty is much reduced. So if the offence be
by more than two persons, the principal will be
sent to the Mahommedan settlements as a slave,
and the accessories will be transported for life
3000 // distance.
Again, where the families of the offender and
the girl are connected ^ ^ JJk ^ , and there
has been previous proposal of marriage, some
mitigation is allowed. As, for instance, where
more than two persons are concerned — when
the principal is sentenced to death provisionally,
and the accessories to transportation. On the
other hand, if there was no tie subsisting between
380 ABDUCTION
the families, a mere proposal of marriage acts
as no sort of extenuation.
Furthermore, if the principal sends the woman
back unharmed, and delivers himself up to justice,
he will only be sentenced to penal servitude
on the frontiers ; and an accessory in such
case who delivers himself up will be sentenced
to transportation for three years merely —
increased by three months' cangue if he be in
the service of the family of the girl abducted.
It seems not entirely irrelevant to mention in
conclusion that case, well-known to foreigners at
the time as the 'Wenchow Abduction Case' —
an illustration of how the law on this topic is
worked where a foreiofner is concerned. The
facts were that a nun was carried off by the
aforesaid foreigner's servants, and was subsequently
ravished by him — the abduction taking place,
according to the Chinese Court, by the express
orders of the master. The foreign Court acquitted
the European both of the rape and abduction ;
but the Chinese authorities insisted on dealing
with the natives concerned, and finding the head
boatman guilty as accessory to abducti(jn and
ABDUCTION 381
rape, sentenced liini to strangulation, and carried
the sentence out. There is little doubt that
the sentence , under the circumstances , would
not have been carried into effect — if Chinese
alone had been concerned ; for a nun's virtue
is, in that country, a doubtful quantity, and the
law would certainly have been satisfied with
the life of the principal alone. On another
showing-, also, it would appear that the execution
was even actually contrary to law ; for the
Court admitted that the boatman was a servant
acting under the orders of his master —
and being so, his sentence should have been
reduced.
SECTION V PROTECTION OF ClilLDKEN KIDNAPPING
PROTECTION OF CHILDREN
When lost, strayed, or fugitive children are
discovered, they should be handed over to the
care of the nearest magistrate.
To detain a lost, strayed, or fugitive child
382 PROTECTION OF CHILDREN — KIDNAPPING
as a slave, wife, or child for a long period,
entails a penalty not exceeding eighty blows
and transportation for two years : to do so for
a short period, entails a penalty not exceeding
eighty blows. To sell a lost or strayed child
as a slave involves transportation for three years
and one hundred blows. To sell a fugitive child as a
slave involves two and a half years' transportation
and ninety blows ; and the fugitive so sold
incurs one degree less punishment than that
incurred by the seller.
KIDNAPPING
This offence differs from abduction in that it
must be accomplished by stratagem, and further
that the kidnapping must be with a view to
subsequent sale : furthermore, abduction applies
merely to women, and there is a considerable
element of immorality in the offence — kidnapping
applies equally to man, woman, or child, and
there is no element of immorality involved.
The offence is variously considered according
to the position of the person kidnapped, the
purpose for which the person kidnapped was
KIDNAPPING 383
sold, and the general circumstances under which
the kidnapping took place.
A few examples only are given.
To kidnap a free person, and afterwards offer
sucli person for sale as a slave, entails on all
concerned transportation for life to a distance of
3000 //and one hundred blows — whether the sale
be effected or not. To kidnap a free person, for
the purpose of selling such person as a wife, or
for adoption, entails on the principal transportation
for three years, and one hundred blows. If, in
such case, the person in question resists and in
consequence is killed, the offender will incur a
penalty of decapitation subject to revision. Where
the person kidnapped was a slave, the penalty
in all the above cases is reduced a decree.
The harbourers and purchasers of persons
kidnapped are liable to the same penalty as
the persons who kidnap.
CHAPTER XI
OFFENCES AGAINST PROPERTY —
LARCENY
SECTION I GENERAL CONSIDERATION
GENERAL CONSIDERATION
The offence, on the whole, covers a wide
field. It is as a subject in Chinese law curiously
divided aqd considered ; and points which with
us could only well arise in the case of so
distinct an offence as, for instance, burglary or
house-breaking , commonly arise in China in
connection with larceny — be it what we call
simple or aggravated : and, moreover, what with
us are distinct offences, are treated in China
merely as forms of the primary offence of larceny —
e. g. substitution.
OENERAT. CONSIDERATION 385
The chief division of the subject is into larceny
committed by stealth, and larceny committed
openly : the former is theft, the latter robbery.
What is meant is , that though in both cases it
is essential that there should be a taking without
justification M ^ 'If iL A HI #) * ItT * ^
I® S Ei ^ 1 ""1 theft the taking is by stealth
[^ ^ '(m ffll 1 ^^it in robbery the taking is done
openly <&fi^MM (H. A. H. L. vol. XVI.
p. 24).
Robbery is not of necessity punished more
severely than theft, both equally depend for
their gravity upon the attendant circumstances
and conditions, and it is in consequence of this
latter point that probably more space in a
Chinese law book is given to robbery than
theft — for the former lends itself to special
circumstances.
It may be well to note that the word fsei
_|^ 1 usually translated robber or thief, does not
mean merely this, but is applied "to all persons
"who set the authorities at defiance by acquisitive
"acts of violence" — and inasmuch as "the
"object which it is sought to acquire may be a
C. E. G. 25
386 GENERAL CONSIDERATION THE TAKING
''bag of money or the Empire" it results that
tsei implies "either robber, or bandit, or rebel".
Tao '^ is the generic term for larceny —
theft being cJiich tao ^ ^ and robbery
cJiiang tao ^ ^ .
The taking. — {ci) That the full penalt)^ for
an act of larceny may be inflicted, the taking
must be without any sort of justification or
excuse ; and reasonable, but sometimes trifling,
and occasionally very questionable considerations,
will create — even in aesfravated cases —
sometimes partial, and occasionally complete
extenuation, so far as the larceny is concerned.
Thus one person has a claim against another,
and violently carries off the latter 's cattle in
satisfaction thereof — penalty eighty blows only.
Again if the aforesaid claimant chances to kill
the cattle owner, the penalty will be that for
killing in affray, or ordinary murder {zk Debt).
On the other hand, if the taking be without
any ground whatever, the mere taking will render
the culprit liable to three years' transportation
and one hundred blows ; and if under similar
conditions life is taken, the penalty will be
GKNKRAI, CONSinERATION TlIK TAKING 387
decapitation without appeal — or assuming
several are involved, decajoitation without appeal
for the principal, strangulation subject to His
Imperial Majesty's approval for those guilty in
the second degree, and penal servitude for life
on the remote frontiers for simple accessories or
third parties. There is also another curious
point in this connection, if the cattle or property
carried off do not belong to the person against
whom the carrier has a claim, it would seem
that the case will not be considered as one of
larceny. So in the case of Cheng Ch'ien-ts'ai
S[5 ?ii ^ ' where a creditor and some friends
of his tried to carry off some cattle owned by
a debtor jointly with his brother, and the latter
being killed by one of the creditor's friends,
the Board refused to allow the case to be dealt
with as one of robbery and murder (H. A. H.
L. vol. XVI. p. 4 and post — Debt). And so
also in the case of Li Hsing-t'ai ^ J^ "TC '
awarded a mitigated penalty (but not for larceny)
under somewhat similar circumstances (H. A. H.
L. vol. XVI. p. 6).
Occasionally the claimant, previous to his action.
388 GENERAL CONSIDERATION — THE TAKING
has indulged in words or a struggle — merely
as a mode of bringing his just demands before
his debtor. So in the case of Ou P'engf-shun
Wi ^^ )lM 1 ^ convict who first having words
with his master, because he would not pay his
wages, then proceeded to rob the latter — the
case being treated as simple theft, with penalty
therefor increased by two degrees (H. A. H.
L. vol. XVI. pp. 4 — 5). And in the case of
Liu Lao-kung ^J ^ ^ , the culprit was owed
300 cash by the man with whom he was
struggling — and though he killed his victim,
and considered 7200 cash necessary to meet
his claim, the case was considered as one of
killing with intent merely (id.). And though
the claim was a gambling one, similar actions
would be similarly treated (H. A. H. L. vol.
XVI. p. 6).
A person may even clear out another's
premises, and carry off his stock, and escape
with transportation for life — if he has some
lame excuse like Li Chia ^ t|| , to the effect
that "he refused to give me some money to
"go in search of my wife, who had been in his
GENERAL CONSIDEKATHJN — Tlir. TAKING 389
''service and had bolted" [id.). A mere grudge
against an establishment for dismissing the culprit
(though for a good enough cause) has saved
the aforesaid culprit from the full penalty for
simple larceny of some useful articles in the said
establishment.
The reasoning is occasionally even more strained
and far-fetched. For instance, it is not robbery
to relieve a friend because he will not lend a
'fiver' (id.). And if two parties being on the
same footing engage in a fight, and one of
them despoils the other, the case will not be
aggravated by being considered one of larceny
also — the preliminary fight is considered as
explanatory of a desire for revenge, and the
revenge took the form of openly taking another's
property.
{p) Whether or not there was an asportation
is a vital consideration in nearly every case
(H. A. H. L. vol. XVI. p. 36). The offence
may however be found, although there was no
removal — the attempt being punished — but
not [iiota bene) with the full penalty. Thus if the
offence be in a house, the offenders may be
390 GENERAL CON'SIDKRATION THE TAKING
punished for larceny from the mere fact of
entering with that intention — that they gained
nothing does not so far materially affect the
case : a fortiori the offenders will be punished
for larceny (though not to the full degree) if
they took plunder, but abandoned it on the
premises : but for the full penalty to be inflicted,
the things must have been carried off the premises.
Even in dealing with the gangs of robbers with
which Western China is infested, the penalty is
less by one degree, if no plunder has been
obtained.
Certain distinctions are furthermore herein drawn,
as to the nature of the object taken, and the
extent of the asportation. Thus, with valuables,
it is sufficient for the full penalty to have taken
and concealed them about the person : but strings
of cash, and common articles of furniture, must
have actually been carried effectively away, to
secure conviction for the full offence, or indeed
for larceny in any degree : so in an instance
wherein a prisoner was acquitted of the offence,
after having entered a house, and done up in
a bundle a couple of thousand cash — being
C.KNKKAI, CONSIDKRATION UK TKKM INATIUN OF GRAVITY 39 1
caught in the act of carrying- his booty away
(H. A. H. L. vol. XXII. p. 17). Again, as
regards heavy articles of wood or stone, that
the full penalty be adjudged, it is necessary
that such have been placed on the cart or
means of transport provided for the removal.
Horses, asses, and the like, must have been
removed from the stable : and, in this connection,
it is provided that if but one horse has been
removed, and others follow forth, the offender
shall not be held responsible for more than the
one animal. In the case of dogs, hawks, and
the like small domestic animals, it is an essential
that the offender has obtained physical control
over them, in consequence whereof they are
actually in the offender's possession. Articles of
food are not considered in the lio;ht of valuables :
contraband salt, of course, is (H. A. H. L.
Supp. vol. IV. p. 4). It may be mentioned
also that to make away with the plunder of
another offender is treated as an ordinary act
of larceny {id.).
Determination of gravity of offence. — This,
apart from special circumstances of aggravation
392 GENERAL CONSIDERATION UETERMINATION OF GRAVITY
or special conditions, is chiefly dependent upon
tlie value of the property taken — and ordinarily
the amount taken on the one occasion (H. A.
H. L. Supp. vol. VI.). For if the offender
takes something to-day , and again something
more to-morrow, the offences are looked upon
as separate cases, though discovered at the
same time — and the offender, in accordance
with the rule, is tried for the more important
only. But if the constant offender is a servant,
and has taken from his master, when the latter
finds out his several losses at one and the
same time, the several amounts will be considered
as part and parcel of one offence. There is
however some question whether this latter ruling
is sound : indeed it is said that the culprit will
merely be dealt with as a hardened offender
[q. V.) : and he will certainly be so treated if
the losses were not discovered at one and
the same time — as where the master is
''lying low".
\n reckoningr the amount taken, the value
of plunder capable of being realized is alone
considered : so notes payable to the person
GENERAL CONSIDERATION I)E TEUMINA TION OV GRAVITY 393
named upon them, or which are not due, are
not taken into the calculation. If the taking be
in copper cash, one thousand of such are to be
considered as equivalent to one tael of silver,
and the ruling rate is not to be taken into
consideration (H. A. H. L. vol. XVI. p. 60).
If clothes be taken, the average cost is to be
reckoned the value, and not the amount for
which they may have been pawned (H. A. H.
L. vol. XVI. p. 61).
If the offenders be several, the value to be
considered is that for the aofsreo-ate of the
plunder taken, and not what the offenders
individually have had in their possession or know
of (H. A. H. L. vol. XV. p. 63). Moreover the
principal will receive a sentence based upon the
aggregate sum, irrespective of his individual
share, and regardless whether a confederate got
away with the bulk of the propert}', or whether
all the property has been lost: the confederates
receive lesser sentences — also regardless whether
they have received any plunder or not.
If the victims be several, the value to be
considered is not the aggregate of the plunder
394 OENKRAL CONSIDERATION — DETERMINATION' OE GRAVITY
taken, but the value of the plunder taken from
the greatest loser. And this though two or more
persons who suffered were lodging in the same
hut, or were on board the same boat — case
of Li Ming ^ Hg (H. A. H. L. vol. XVII. p. 3).
Larceny to an amount of one hundred and
twenty taels or more is a capital offence ; but
if under five hundred taels value is taken (and
over one hundred and twenty), the case is subject
to the Autumn Revision ; and if more than five
hundred taels, the sentence will be confirmed
(H. A. H. L. vol. XVI. p. 66). And, in this
connection , if the offenders be several , the
principal will be sentenced to death — though
his individual share falls short of the capital
sum — while the confederates will be sentenced
to transportation for life.
Larceny to an amount of one hundred taels
or over, but under one hundred and twenty, is
punishable by transportation for life 2000 //
from the offender's home ; and if the offender
runs away from punishment, and commits a
further act of larceny, his punishment will be
increased two degrees ; and if he so offend
IIK.NICRAL CUNSIDKKAl'lON UKIKRM INAIIDN OF GRAVITY 395
thrice, he will be treated as an incorrigible rogue,
and sent to penal servitude on the frontiers of
Yunnan Kueichow or the Two Kuang f}^v ^M
m 3t M m Bmnmsm^mm
— distinction being drawn between one who
runs away and commits the larceny before
reaching the place of punishment, and one who
does so afterwards.
The value put upon the property by the
owner is not to be accepted unless evidence is
given ; and in capital cases of larceny, where
there is any doubt as to the value, the words
''after the Autumn Assize" are to be added to
the sentence of death.
As regards circumstance of aggravation (such
as violence and murder), and special conditions
(such as relationship), affecting a particular act
of larceny, the more common cases require
separate treatment ; but it may be noted here,
as a general rule, that larceny by day is not
regarded so gravely as larceny by night, and
that larceny from a relation is more leniently
considered than larceny from an outsider.
396 SOME GENERAL VARIETIES — RoBliERY WITH VIOLENCE
SECTION II SOME GENERAL VARIETIES
SOME GENERAL VARIETIES
Robbery zvitJi violence. — This is considered
to be where the offenders are many and carry
weapons, as distinct from simple robbery where
the offenders are few in number and unarmed.
It is an essential of the offence that the violence
should precede the robbery, but it is not essential
that the violence should have been with a view
to plunder. Whether or not the violence was
with a view to plunder is very important however ;
if it was, the penalty of decapitation will be
meted out to all concerned \ if it was not, the
plundering being, as it were, an after-thought,
the principal only will be so treated, and the
others less rigorously in varying degrees. So in
a rule which prescribes that where the robbers
are more than ten in number, or carry weapons,
the principal is to be treated under the law
regarding robbery with violence — the penalty
for those guilty in the second degree being
reduced a step 3!| $]l + A J^ ± ^1^ l# 3^
SOME GENERAL VARIETIES ROBBERY WITH VIOLENCE 397
— # (H. A. H. L. vol. XV. p. 78).
The scope of the offence is in fact wide; for
even if the person robbed receives no hurt, and
the robbers do not succeed in getting any
plunder, the case is yet considered as one of
robbery with violence (though of a milder nature)
from the fact of the attempt having been made
— the principal being liable to penal servitude
for life, and the accessories to transportation for
the same period. Indeed, the parties will be
liable to transportation for life, if there be
distinct evidence that the robbery was contemplated
— as judged from the fact that they were
caught with arms in their possession, and have
enrolled themselves into a band (H. A. H. L.
vol. XIV. p. 91).
As regards the arming-, it is laid down that
anything which can be used for purposes of
offence or defence, or for facilitating the robbery,
comes under the category of arms and appliances
^ 1m — whips, sticks, knives, poles, even a
ladder. Moreover the fact that only one of the
band was armed is sufficient for the whole body
398 SOME GENERAI. VARIETIES ROBIIERY WITH VIOLENCE
to be considered an armed band (H. A. H. L.
vol. XVI. p. 34).
If the robbery be from a house, and the
master of the .house was put in fear, it is
robbery with violence ; and accomplices in the
robbery may be treated as principals, although
they remained outside the house , provided
they took part in the act by which the person
robbed was frightened. So in the case of Chanof
Te-yiian 5S f ^ 7U and others, wherein the
violence consisted in rapping the shutters of a
house with a stick and knocking- down some
tiles from the roof; the master of the house,
terribly frightened thereby fled away by a back
door, and two men of the party entering the
premises, stole what they wanted without opposition
(H. A. H. L. vol. XIV. p. 40).
The common offence of stupifying the victims
before robbery is also looked on as robbery
with violence ; and the deviser of the robbery,
the preparer of the drug, the person who actually
administers it, and (if it be a second offence)
all accomplices will be sentenced to immediate
decapitation, if the object was effected : others
SOME GENERAL VARIETIES — ROBBERY WITH VIOLENCE 399
concerned will be transported to Turkestan. If,
thouo-h the object was not effected, the victim
died from the druo^oring', all concerned will be
equally liable to immediate decapitation — and,
if the victim be recovered by some one else,
to decapitation subject to revision, hi no case
wall the offenders be allowed any benefit by
delivering themselves up to justice (H. A. H.
L. vol. XIII. p. 67).
In ordinary cases of robbery with violence, if
anybody be killed, whether it be the person
robbed, or the police who had come to his
assistance, the penalty will be summary decapitation
and exposure of the head for all concerned ; if
anyone be wounded merely, the sentence of
decapitation will be summary, or subject to
revision, according as any plunder has actually
been taken or not (H. A. H. L. vol. XIV.
p. 98).
Circonstances attenuantes will be allowed if
the offender stopped on the way to the scene
of action, and took no part in the affair beyond
sharing the plunder. This concession does not
extend to one who was a prime mover in the
400 SOME GENKRAL VARIETIES ROBIiERY AND MURDER
affair, and was merely prevented from taking
any action by sickness (H. A. H. L. vol. XIV.
p. 42). Again, all who enter a house robbed
are liable in the first degree ; but mitigating
circumstances are allowed in the case of accomplices
keeping^ watch outside or receiving the plunder
— tmless they are enrolled members of the
band, or actually take part in the violence, or
use threateningr lanoruaee, or are old offenders.
It is important, therefore, to determine the fact
of entry. For the purposes of the article on this
subject, a temporar^'^ shed is considered a house,
if the proprietor has clothes or money in it
(H. A. H. L. vol. XIV. p. 36).
Robbery and mitrder. — If in the course of
a robbery the victim jumps into the water and
is drowned it is robbery and murder, and the
offender will be sentenced to decapitation, under
the statute of forcing a man to kill himself by
robbery W&)k%. K'$.~^ (H. A. H L.
vol. XVI. p. 8 — V. also suicide on this
point).
Robbery in bodies or mobs armed and unarmed. —
As regards robbery in bodies, the general rule
SOME GENERAL VARIETIES ROBliERY IN HODIES OR MOHS ETC. 40I
is that where the robbers are less than ten in
number and unarmed the case will be treated
as a simple robbery Ig" # g| #/ !^fc + A J^l
but where the body is of more than ten members,
if unarmed, or less than ten, if armed, and the
members thereof take advantagfe of a disturbance
to plunder or behave in a violent and murderous
manner, the aforesaid members will be dealt
with under the special statute relating to the
crews of the rice convoys — the principal being
treated as a pirate, and the others less rigorously
by one degree $R fl 3? ^ + A J^ Jl 2^
^ M ® M (H. A. H. L. vol. XV. p. 78).
The law on this point varies, however, in
different provinces, and in certain parts of the
Empire which are infested by regular bands of
brigands ?i§^, '^, highway robbery by more than
one person is treated as brigandage. The provisions
in question are, however, of local application
only, and are construed with gi'eat strictness.
C. E. G. 26
402 SOME GENERAL VARIETIES — ROBBERY IN BODIES OR MOBS ETC.
But elsewhere, if a band of robbers set upon a
traveller, or a mob loot a fair, or a gang
combine to rob a house, the members thereof
are, as a rule, dealt with under the ordinary
law stated above ; or if the robbery be from a
government rice depot by a mob of starving
villagers, but two months' cansfue will be added
to the ordinary penalty (H. A. H. L. vol.
XVI. p. 23). For in general, outside the parts
in question, robberies committed by several or in
bands are — as in the last case given — the
result of the casual coming together of poor
creatures led to the offence by hunger. The
Chinese law recognises nahiralis aequitas. The
parts to which the special provisions apply are
Szechuan, Honan, Anhui, Hupeh, Shansi, and
parts of Kiangsu and Shantung. In these provinces,
excepting only Shansi, robbery by more than
one person, but under four, is punished with
military servitude to a distance of 4000 li\ and
if the person robbed be hurt, however slightly,
the punishment is strangulation. If the robbers
be four or more in number, but under ten, the
punishment for the mere robbery is servitude in
SOME r.ENEKAI. VARIETIES — KOKBERY IN BODIES OR MOV.S ETC. 403
IH — all the robbers being treated as principals.
If the robbers number ten or more, the mere
robbery is visited with capital punishment. In
Shansi, a general provision prevails that robbery
by three or more entails a degree greater
severity of punishment than for the ordinary
offence (H. A. H. L. vol. XVI. pp. 8— ii).
The above provisions in their entirety apply to
what are called 'armed bands', to constitute
which it is sufficient that but one member of
the band has but a knife : but not much
distinction is made in the application of the rules
to unarmed bands — the various penalties being
lessened by one degree.
It seems convenient to notice here the treatment
accorded tramps and beggars, who in certain
parts of China — more particularly in Szechuan
and the adjacent provinces — infest the countryside
in swarms. These lean creatures wander the
country round, and take whatsoever they can
lay hands on, without actually being guilty of
larceny (so runs the law). As an exceptional
measure, therefore, it is provided that where
four or more cases are brought against any such
404 SOME GENERAL VARIETIES — ROBBERY DURING RIOT
person, he shall be condemned to wear an iron bar
for the space of a year — in addition to ordinary
transportation and bambooing (H. A. H. L.
vol. XVI. p. 44). If such beggar or tramp so
offends again, he will be condemned to wear
the bar for two years ; and if this is without
effect, for three years. The weight of the bar
is 40 catties — about 53 lbs (H. A. H. L. vol.
XVI. p. 46).
Robbery during riot. — A very common
occurrence in China is that passers — by take
advantage of a dispute to invade a shop and
carry off the contents; and similarly it often
occurs that when a row is excited in a chapel
or missionary book store, the mob pour in and
clear it out. Complaint is often made in these
cases, where foreigners are concerned, that
although there were police or soldiers present
they did not interfere in any way. The case of
Lu Wen-ching i^ X $M throws a good deal
of light on the whole subject. In the case
mentioned, a village postmaster and general
commission accent had ir^t into trouble and lost
his licence ; and one of the said postmaster's
SOME GENERAL VARIETIES ROBBERY DURING RIOT 405
creditors failing- to induce his debtor's successor
to take over his liabilities, determined to be
avenged — forthwith spreading- reports of proposed
action on the part of the postmaster. As the
action in point would have caused considerable
local inconvenience, public opinion was quickly
excited against the postmaster, and the creditor
had no difficulty in collecting together some
seventeen men to accompany him to the debtor's
house — and, under cover of protesting against
the action, to clear out the establishment. As
it was a market day, there was a large rowdy
element on the spot ; and the mob pouring in,
the shop was effectually gutted before the police
were able to arrive — the officers on the orround
contenting themselves with reporting the affair.
The ringleader was caught, and sentenced by the
Provincial Authorities to death — on the ground
that the amount of the plunder was over one hundred
and twenty taels in value and that more than ten
men were concerned. This judgment was reversed
by the Board; the latter pointing out that the
punishment for simple robbery — i. e. taking a
man's property openly — is one hundred blows
406 SOME GENERAL VARIETIES SU15ST1TUTION
and three years' transportation. The Board
furthermore (juoted the rules relating to robbery
in bodies, and held that the present case was
nothing more than simple robbery of a somewhat
aggravated nature — for though the offence
was committed by an unarmed band of over
ten members, yet there was no undue violence.
The Board further declined to allow the capital
sentence, on the orround of the value of the
property taken — stating that the total amount
acknowledged to by the culprit and his accomplices
only came to some seventy-five or eighty taels,
and that the other property was probably carried
off by passers-by. The principal culprit was, in
the result, sentenced to military servitude; the
others to one hundred blows and three years'
transportation. The conduct of the officers on
the spot in simply standing by and merely
reporting the disturbance caused no comment.
Substitution. — A not infrequent offence is
that whc^rein one party mixes bundles of his
own property with bundles of property belonging
to another , and then makes off with the
latter's — as, for instance, in the not uncommon
SOME SPECIAL VARIETIES — LARCENY BY CERTAIN PERSONS 407
practice of a certain class, who lump down
bogus loads at post or stopping stations, and
carry off instead the valuable baggage the
porters have already set down there, as if by
mistake. This offence is considered as robbery
or theft, according as the substitution took place
openly or by stealth.
SECTION HI SOME SPECIAL VARIETIES
SOME SPECIAL VARIETIES
I. Larceny by certain persons. — {a) Firstly as
to relations.
Robbery or theft from relations (within certain
degrees) is not regarded as so heinous an offence as
robbery or theft from outsiders, and the nearer the
relationship, the less the criminality attaching to the
offence. The reason is that all things in China are in
some sort held in common, and, as one of the family,
a relation is interested in the family property.
If, therefore, one relation steals from another, he
merely takes what is more or less his own by
ties of kindred, and is guilty rather of a breach
408 SOME SrEClAl. VAKIKTIKS LARCENY UY CERTAIN PERSONS
of Q-ood manners than of actual crime — it is
not appropriation of what is another's, but a
rude assertion of a rii^dit to at once share in
what may one day accrue. A distinction is made
between the spoliation of children nephews etc.,
and the spoliation of uncles aunts or elder
brothers; the seniors being allowed to steal from
juniors — whose dut)' of course is to dutifully
maintain the seniors with comparatively little
notice — while the juniors, on the other hand,
are warned b)- a heavier penalty that though,
in fact, only anticipating events, they should not
give their seniors annoyance by helping themselves
without leave.
Though however one relation may with
comparative immunity steal from another, if an
outsider be introduced for the purpose, the case
becomes one of ordinary robbery or theft, and
no plea of relationship in mitigation will be
entertained — unless indeed the relations be
living together, when the offending relation will
be excused, and die outside confederate considered
as an ordinary robber or thief, with sentence
somewhat mitigated (H. A. H. L. vol. XVI. p. 39).
SOMI-: SPECIAL VARIETIES • — LARCENY 15Y CERTAIN I'ERSONS 409
Moreover, if in the course of the robbery or theft,
resort is had to violence, the ordinar)- rules relating
to bodil)' injur}- done b)- one relation to another
will appl}', and the penalty increased or mitigated
as the case ma\' be.
The following table gives the various penalties
for robber}- where relations are concerned,
relationship beyond the fifth degree not being
taken into consideration : —
From relation of
i^' degree by senior if successful 70 l)Iows
„ „ „ attempted 60 „
„ junior „ successful i| years' transportation
„ „ „ attempted i „ „
2'"^' „ „ senior „ successful 80 blows
„ „ „ attempted 70 „
„ junior „ successful 2 years' transportation
„ „ „ attempted li „ „
3"' „ „ senior „ successful 90 blows
„ „ „ attempted 80 „
„ junior „ successful 2| years' transportation
„ „ „ attempted 2 „ „
4fh ^ ^ senior „ successful 100 blows
„ „ „ attempted 80 „
„ junior. „ successful 3 years' transportation
„ „ „ attempted 2i „ „
51I1 „ „ senior „ successful 100 blows
„ „ „ attempted 100 „
„ junior „ successful trans]iortation for life
„ „ „ attempted 3 years' transportation
4IO SOME SPECIAL VARIETIES LARCENY HY CERTAIN PERSONS
[d) As regards larceny by carriers and innkeepers.
Robbery by carriers., whether boatmen or coolies,
is usually treated somewhat more severely than
ordinary robbery, but is not considered as a
breach of trust (H. A. H. L. vol. XVII. p. 2).
So in the case of a contract to convey goods
by boat (the owner of the goods accompanying
them), and the boat being wrecked, the carriers
make off with part of the cargo they have
managed to save. This is robbery (z'. case of
the head-boatman Kao 0j ^ j^ H. A. H. L.
vol. XVII. p. 3), and the ordinary penalty
therefor will be increased by two months' cangue
(H. A. H. L. vol. XVII. p. 4) — unless the
amount is such as to render the offence capital.
It makes a great difference whether the owner
of the goods was present at the time or not;
for if he has merely intrusted his property to
the carriers, and does not accompany it himself,
the offence is ''making off with" ^ ^ — not
theft — and the penalty cannot exceed transportation
for life, whatever the amount ; if, on the other
hand, the owner was present, inasmuch as the
loss may leave him without resource in the
SOMK Sri'X'IAI. VARIETIES LARCENY UY CERTAIN PERSONS 4II
middle of his journey, the case is treated as
robbery — not theft (H. A. H. L. vol. XVII.
p. 5). The distinction does not however appear
to be always borne in mind ; for, in the case of
Yang Ch'i-yiin ^ ^ ^ , who appropriated goods
entrusted to him for carriage, although the owner
was not present, the offender was sentenced for
robbery — and notwithstanding, seemingly, that
the reason for the action was want of funds
during the journey, and the offender fully intended
to make the money good (H. A. H. L. vol.
XVII. p. 7).
Larceny by innkeepers is somewhat more serious
than ordinary larceny, and, in the case of robbery,
three months' cangfue will be added to the
ordinary penalty — unless the amount is such
as to render the offence capital (H. A. H. L.
vol. XVII. p. 10).
II. Larceny from cerfazu places or of certain
objects. — {a) Certain heinous offences under
this head are incapable of resolution into the
ordinary law on the point, and stand apart by
reason of their gravity or exceptional nature.
So larceny from an Imperial Palace entails
412 SOME SPECIAL VARIETIES LARCENY FROM CERTAIN PLACES ETC.
strangulation for all concerned : larceny of an Imperial
edict entails on all concerned either decapitation
or one hundred blows of the bamboo and
brandinof on the arm, accordincr as the aforesaid
edict had or had not received the impression of
the hnperial seal : and larceny of an Imperial
or magisterial seal entails decapitation for all
concerned.
As regards the general law touching larceny
in public offices and official residences and of
public property g ^ , distinctions are drawn
between the nature of the office and the nature
of the property — but in all cases such an
offence is of a more or less ao-aravated nature.
There is a difference in taking official property
from a treasury or a granary or from another
public office ; and for the clauses relating to
larceny of public property to apply, the property
must have been taken from a treasury or a
granar)' ^^ ^I ^ ^ i? Pf ^ tU 3^ * • In
other words, a distinction is drawn betu^een
larceny in a public office (though in actual fact
larceny of public property) and larceny of "public
"property", and the distinction is important because
SOME SPECIAL VARIETIES — LARCENY FROM CERTAIN PLACES ETC. 4I 3
the latter is treated considerably more severely
— the penalty therefor varying from the bamboo
to strangulation, accordine: to a scale relative to
the value of the property stolen. Nice points
arise as to what may fairly be considered a
treasury : so money taken from a side room in
the Provincial Treasurer's Office is to be treated
as larceny in a public office, and not of public
property (H. A. H. L. vol. XVI. p. 72): and
the accountant's room in a magistrate's office,
although the money taken therefrom was public
money, is not to be held a treasury (H. A. H. L.
vol. XVI. p. 73). Other points arise as to
what may be considered a public office. A
temporary residence of an official is not so
considered — though larceny committed therein
entails an aggravation of one degree ; and
this although the offender had no means of
tellincj that an official was livine in the house
(H. A. H. L. vol. XVI. p. 69). But the official
in question must be an executive officer (H. A.
H. L. vol. XVI. p. 73); and a clerk or writer
to an executive officer will be considered an
executive officer (H. A. H. L. vol. XVI. p. 75).
414 SOME SPECIAL VARIETIES LARCENY FROM CERTAIN PLACES ETC.
A public college is not considered a public
office, and — e.g. — robbery therefrom will be
treated as ordinary robbery (H. A. H. L. vol.
XVI. p. 73). To break into a walled town by
ofettine throuofh the water eate, and then rob,
is treated as robbery from a public office (H.
A. H. L. vol. XVI. p. 78). To steal the keys
of a city gate is considered in some sort as
stealing from a public office — and entails three
years' transportation.
The larceny of old registers or documents
comes within the provisions regarding larceny in
public offices, and is punishable with military
servitude (H. A. H. L. vol. XVI. p. 74 —
V. also Unlawftd Dealings zvith Public Stores
and Property).
Larceny of military weapons and accoutrements
is. on a different footing from larceny of public
property etc., distinctions being drawn as to
whether the subject of the larceny was an
implement or article of dress not exclusively
military in its nature — c. g. a bow, an arrow,
a soldier's undress uniform — or whether the
subject of the larceny was some exclusively
SOME SPECIAL VARIETIES — LARCENY FROM CERTAIN PLACES ETC. 415
military implement or article of dress. In the
former case robbery or theft is on the same
footing- as ordinary robbery or theft ; in the
latter case the tniniimiin penalty is eighty blows
for one such article taken — the penalty
increasinor a deofree for each additional article
(v. Making, Possessing , and Tra^ffi eking in
Arms , ete.J.
{/?) Another special variety of larceny is that
from W7^eeks. There seem to be rigorous penalties
for wreckinof. So in a case where a boatman
was sentenced to one hundred blows and
transportation for life to a distance of 3000 li
under the appropriate article, for taking wreckage
into his boat from a wrecked vessel — the owners
of the latter being drowned during the consequent
scuffle (H. A. H. L. Supp. vol. V. p. 67). In
another instance, where a boat was overturned
during a sudden squall on the Yangtsz river,
the offender instead of oroinof to the assistance
of the boat, helped himself to such wreckage
as he could collect ^^% I^^lfeSftLtt
o o S ^ Is ¥ 1 and under the article ^ '/^
S K * ^ ^t ^ M It * ftn - # was
41 6 SOME SPECIAL VARIETIES — LARCENY FROM CERTAIN PLACES ETC.
sentenced to one hundred blows, transportcation
for life 3000 li distance, and branding- (H. A.
H. L. Supp. vol. V. p. 68). Officials who fail
to report cases of wrecking which occur within
their jurisdiction may also suffer severely : thus
a hereditar)- dignitary in Formosa was stripped
of his title for not reporting a case wherein his
clansmen broke up and robbed a wrecked vessel
?jf tt M a l§ ® (H. A. H. L. Supp. vol.
V. p. 6^).
(c) As regards larceny of crops^ there is this
special point to be noted — if the crops have
been garnered, it is robbery, if left ungarnered,
it is merely taking (H. A. H. L. vol. XVI. p.
41). So also with the larceny of timber or
brushwood, cut or stacked, or otherwise prepared
for use — although found in places not under
cultivation. In this connection, it is naturally a
somewhat graver offence if the aforesaid acts of
larceny be from a cemeter)' ; if the latter be an
Imperial enclosure, entailing at the least three
years' transportation, and if the enclosure be
private, entailing at the least eighty blows of
the bamboo.
RECEIVERS OF STOLEN PROPERTY 4I7
(d) The larceny of domestic animals^ such
as horses, asses, geese, and ducks, is on the
same footing as the larceny of crops, timber,
etc. — distinctions being drawn as to whether the
animals were public property or not, and in the
former case the rules relating to larceny of public
property applying. Moreover further distinctions
are made in regard of the subsequent killing of
the animal by the offender, and the kind of
animal so killed.
SECTION IV RECEIVERS OF STOLEN PROPERTY —
SUPPLEMENTARY CONSIDERATIONS
RECEIVERS OF STOLEN PROPERTY
Receivers are, under certain conditions, in a
worse case than the actual robber or thief; for
whereas the actual offender is punished according
to the value of the plunder he has obtained in
one offence, although he may have committed
several, the receiver of the property will be
tried and punished according to the aggregate
41 8 RECEIVERS OF STOLES PROPERTY
value of the property obtained in all the offences.
Thus the several larcenies are in respect of a
sum acrorreofatinof over Tls. 1 20, but no one of
the several victims having lost more than say
Tls. I 5 , the offender will escape with a comparatively
slight punishment — perhaps with merely a
bambooing : the receiver, on the other hand,
will be liable to capital punishment.
The offence is in fact generally rigorously
treated : so the younger brother of a pirate, who
devoted a small portion of the latter's earnings
to the settlement of a tailor's bill, was sent to
military servitude on the borders. Indeed for a
person to run away with plunder committed to
his care makes him particeps criminis (H. A.
H. L. vol. XXII. p. 3). Buying goods from a
carrier, knowing he had no authority to sell
them, is the same as receiving stolen property
(H. A. H. L. vol. XXII. p. i). Moreover to harbour a
robber is considered the same thing as setting up as
a receiver ; and if the harbouring be for the sake
of gain ^ ^Ij ^ •§ , and to the number of
three or more, the penalty of military servitude
on the frontiers will be adjudged — whether
RECEIVERS OK STOLEN rROl'ERTY PAWNBROKERS 4I9
the harbourer has shared the plunder or not
(H. A. H. L. vol. XXII. p. 4).
A receiver who makes a reo-ular business of
it will be transported for three years, though
the thefts were individually of little account
(H. A. H. L. vol. XXII. p. 2). The business
is however so popular with a certain class, that
capital punishment is alone sufficient to stay the
longing — as in the case of a convict, who
legally remonstrated with by being sentenced to
transportation for a term for the offence, duly
served it, and restarted a business on his return.
Pawnbrokers. — When stolen property is found
in a pawnshop, it is argued that the pawnbroker,
if he did not know it was stolen (and the
obligation of enquiry does not seem to be imposed
upon him), is entitled to recover the principal
sum advanced, losing his interest only — • and
it appears in a report from the Board, on
representation made by the Judicial Commissioner
for Chekianor that the amount is to be recovered
from the thief. Where there is no owner for
the pawned plunder, the pawnbroker may reclaim
it (H. A. H. L. vol. XIV. p. 91).
420 SUPPLEMENTARY CONSIDERATIONS — REPARATION
SUPPLEMENTARY CONSIDERATIONS
Reparation. — Chinese law allows reparation
to be made, and if the robber or thief of his
own motion restores the plunder he has taken,
he will be held absolved. If the offender does
so in knowledge that the victim intends to lay
an information, still the penalty will be mitigated
two degrees ; and even if the reparation be
made after information has been laid, and a
warrant issued for the offender's arrest, the
sentence will be mitigated one degree (H. A.
H. L. Supp. vol. VII. p. 37 — and cf.
Delivery 7ip to justice).
Violence in resisting pursuit or arrest. — In
cases of robbery with violence, if a robber kills
a pursuer rather than give up his plunder, and
whether the person killed be he whose property
has been taken or a neighbour of the latter,
it is decapitation without more ado. Hut if the
jnirsuer be merely wounded, it makes a difference
SUm.EMliN TAUV CONiilDICUATIONS VIOI.KNCK IN KF.SISTANCK 42 1
apparently whether he was or was not the
person whose property had been taken —
being decapitation subject to revision in the former
case, and in the latter merely an aggravation
of the penalty for the original offence. So in
the case of Hu Ch'ao n^ ^ , who, running
awa), was caught in the court-yard of a
neighbour's house by the alarmed occupants —
and thereon cut the fingers of a servant. In
cases of ordinary robbery or theft, a neighbour
who interferes is on a different footing. Furthermore,
so far as concerns the mere agfSfravation of the
penalty for the ordinary offence, mere threats
by an offender in resisting the recovery of his
plunder are sufficient {v. case of Sun Lan-t'ai -^
g ^ H. A. H. L. vol. XIII. p. 35).
Violence by a robber in resisting arrest, if
life is lost , is punishable by decapitation —
others concerned being also liable, but not
capitally. Moreover, where the offenders are
several, and in resisting arrest life is lost, the
principal in the robbery is alone capitall}' liable
— although the fatal blow was not dealt by
him (H. A. H. L. vol. XIV. p. 33). In short,
422 SUPPLEMKNTARY CONSIDERATIONS VIOLENCE IN RESISTANCE
violence by robbers in resisting arrest is more
leniently viewed than violence preparatory to or
during a robbery; and this although the violence
took place on the actual scene of the offence
(H. A. H. L. vol. XIV. p. 34).
CHAPTER XII
OFFENCES AGAINST PROPERTY [CONTD.)
— EMBEZZLEMENT, ARSON ETC.
SECTION I — PREFATORY — BREACH OF TRUST
EMBEZZLEMENT — APPROPRIATION
PREFATORY
Careful distinction, sa)' the Chinese law books,
must be drawn between theft, and the connate
offences — embezzlement ^ ^ , misappropriation
fi ffl ® W_St ^ , cheating III |l , and
swindling ^ ,|§ . This for the somewhat strange
reason, that although all lead to a person's losing
his propert}', the four last offences are more easily
guarded against than the first. But although so
careful a distinction is supposed to be made,
the rule, it must l)e confessed, is one of theory
rather than of practice.
424 KREACH t)F TRUST EMIJKZZLEMENT ArrROrKIATlON
BREACH OF TRUST EMBEZZLEMENT
APPROPRIATION
The chief distinction between these offences
and larceny appears to be as to the intention
of the offender when he takes the property into
his possession : in larceny, the criminal intent
being at the time of so taking, in the other
offences, the criminal intent not existing at the
time, but arising subsequentl}- (H. A. H. L. vol.
XVII. p. 8).
As between private individuals, Chinese Law on
the whole regards breach of trust, embezzlement,
and kindred offences, in somewhat lenient fashion.
If a person to whom the goods or money of
another have been entrusted wastes or consumes
the same without authority from the owner, he
will be punished with a penalty not exceeding
ninety blows and transportation for two years
and a half If such trustee fraudulently alleges
the loss o( the property or money confided
to him, a penalty one degree less than that
applying to simj)le theft \\ ill attach — and based
of course ujjon the xaluc of the property
HKEACII OF TRUST EMliKZZI.KMENT APl'ROl'RIATION 425
embezzled. Furthermore, the trustee must restore
to the right owner the property — or in lieu thereof,
its full value.
On the whole, then, cases of embezzlement
and breach of trust are treated lightly. In the
case of Ch'ao P'an-ming ffi S ^ , a factor
used money deposited with him for his own
purposes, and being unable to replace it, was
tried as if he had merely stolen it — the
due punishment being reduced a degree. The
Board furthermore remarked that the offender
did not mean to appropriate the money, and
though when asked for it he pretended that there
must be some mistake, and caused thereby the
unfortunate depositor to hang himself, yet the
case did not seem to be one for exceptional
severity (H. A. H. L. Supp. vol. IV. p. 13).
So ao-ain in the case of Wang- Ts'uno-ch'encr
-F ^ gj( , who used his sleeping partner's money
for his own speculations; and hiding the fact by
keeping false books, he caused his partner to
lose in the result Tls. 3000. To steal but
Tls. 120 is a capital offence; but the Board
considered 90 blows and three years' transportation
426 APPROPRIATION ETC. OK GOVERNMENT FUNDS ETC.
quite sufficient a penalty (H. A. H. L. Supp.
vol. IV. p. 14. And again in the case of Li
Ming-shan ^ ^^ ^ , the offender, for spending
some 400,000 cash of other people's money he
had wrongfully got into his possession, was
sentenced to sixty blows and a year's penal
servitude (H. A. H. L. Supp. vol. IV. p. 14).
And thus is treated the mortgaging of trust
propert}- and appropriation of the proceeds {id).
Government f tends etc. : appropriation ,
defalcation, and misapplication thereof. —
The provisions — whether in the Code or
elsewhere — relating to the embezzlement or
appropriation or malversation of Government
funds and property are numerous, interlocking,
at variance, and in general perplexing. Thus
there is embezzlement or appropriation of public
property ; embezzlement or appropriation of
militar\- supplies ; embezzlement or appropriation by
high officials, ordinary officials, or supernumeraries ;
malversation by high officials, ordinary officials,
or supernumeraries. Furthermore, there are the
special circumstances of each [)articular case,
constant] \ \'ar\in''' each licad or sub-head ol the
Al'l'ROPRIATION ETC. Ol-' GOVERNMENT EUNDS ETC. 427
particular offence. A few special points are
noticed.
The scale of punishment for defalcations ol
Government funds is as follows : —
Under Tls. 330 — one hundred blows heavy
bamboo and three years' transportation 2000 li.
From Tls. 330 ui 660 — one hundred blows heavy
bamboo and three years' transportation 2500 //.
From Tls. 660 ut 1 000 — one hundred blows heavy
bamboo and three years' transportation 3000 li.
Over Tls. 1000 — decapitation subject to revision.
If the money be made good within a year,
the death penalty will be commuted a degree
and lesser penalties executed ; and if made good
within two years, all penalties will be reduced a
degree (.f^). If the amount be under Tls. 300 and
made good within a year, treasury- clerks et hoc
gemis omnB will be excused — even though,
as in the case of Liang Fen-yung ^ S M '
they actually stole the money under their charge
(H. A. H. L. vol. XIII. p. 1); and with them,
in any case, if the money be refunded within a
year, the penalty will be reduced a degree —
428 APPROVRIATION ETC. OF GOVEUXMENT FUNDS ETC.
but until the money is refunded, the case is not
dropped, and if the defaulter die, his sons will
be imprisoned for the debt (H. A. H. L. vol.
XIII. p. 2).
One of the worst features of the Code is
the extreme severity with which officials are
punished for losses to the Government over
which they have practically no control {v. nearly
any number Peking Gazette). If a person, under
pressure of necessit\', repairs a granary with the
public funds at his disposal, without previous
authority, he will be held guilty of misapplication
of public funds ; and if, on the contrary, such
person fails to repair it, and the rice etc. is
damaged, he will equally be held responsible for
the loss by neglect. Certain instances are however
justly enough visited with rigour : where , for
example, with authorit), a public building is
repaired , and the materials employed are
unserviceable or are used in a wasteful manner,
the responsible officer becomes liable to a penalty
for malversation varying with the estimated cost
of the materials.
As regards the embezzlement or appropriation
FALSE PRETENCES 429
by official employes of articles in their charge,
the law runs that for the special provisions to
apply the offender must be regularly in government
employ and actually responsible for the article
he annexes ft^^AIS^^i^S*-
If the offender, though temporarily acting as such,
is not a regular official servant, and holds no
appointment M ^Mi W A ^ X # $ W
^ Wi flR 1 the ordinar)' law will apply.
SECTION II FALSE PRETENCES FRAUD EXTORTION
PERSONATION CHEATING
FALSE PRETENCES FRAUD EXTORTION
PERSONATION CHEATING ETC.
False pretences. — To obtain property, whether
public or private, by false pretences, is punished
in the same manner as simple theft of public
or private property — less branding. Where
relationship operates, the effect is the same as
in the case of ordinary theft.
In regard of public property, if two or more
persons are intrusted therewith, and one of the
43°
associates under false pretences obtains from the
other or others a portion of the aforesaid property
for his own use, the case will be treated as
one of embezzlement of public property. An
attempt to commit the offence involves two
degrees less penalty than is above stated.
As with us the distinction between false pretences
and larcen)' is often very fine.
Fraud. — This is subject to the same
considerations, and punishable in the same way,
as the obtaining property by false pretences.
In the case of officials the offence is occasionally
very heavily treated. So in a curious mixed
case wherein a major and a lieutenant were
concerned, and sentenced, the one to decapitation,
the other to transportation for life, for making
a false report of the loss of a war junk, with
a view to escaping the burden of making good
the cost — Tls. 1090 — for which they were
liable, as it was lost owing to their carelessness.
Both concerned would have been sentenced to
capital punishment , but the lieutenant was
EXTORTION 431
excused on the (ground that he had made a
true report in the first instance, and merely
became a party to the false one substituted for
it at the instigation of his superior.
Extortion or that favourite process known as
'squeezing' is as a rule rather heavily punishable.
Persons who extort with threats the property of
another incur one degree more than the ordinary
penalty for theft, less the branding. For a junior
to so extort property from a senior renders the
former liable to the penalty attaching in ordinary
cases of theft : and for a senior to so do from
a junior renders him liable to a penalty for theft —
with the full advantage of the customary mitigation.
The offence is not uncommonly prg^ctised by
thieves and robbers. So to extort money from
a person robbed, to enable the latter to recover his
property, exposes the offender to the penalty of one
hundred blows and transportation for life ^ ^
BJ ^ « 1^ ae 7 ^ 1^ Rl W ^ * Kli
ffi?iii^^±ftfet-Wiife = ^M (H.
432 EXTORTION
A. H. L. vol. XVII. p. 1 1) : and a thief demanding
money for the restoration of property stolen by
him incurs the same penalty {id^. A person
who acts as middle-man, although personally not
sharing the plunder, is also liable to a penalty
under the law on this point, {id?).
An official who practices extortion is severely
punished — that is in theor)% for many are
denounced, but comparatively few punished. For
an official to extort, by way of loan, money or
goods from those within his jurisdiction involves
liability to a penalty varying as the estimated
value of the money or goods extorted, according
to the scale touching bribery for a lawful purpose :
if, in such case, force be used, a penalty
attaches according to the scale touching bribery
for an unlawful purpose. A high official who
extorts money is liable to a punishment two
degrees heavier than an inferior official would
incur under similar circumstances. A person in
the family of an official who extorts money
from those within the aforesaid official's jurisdiction
will be liable to a penalty two degrees less
than the official would liave incurred under
PERSONATION 433
similar circumstances. An important case touching-
extortion by officials is that of an official in the
island of Hainan, who squeezed the Indians
around his post, and was sentenced to military
servitude on the frontiers — although he got
but fift)' dollars or so : a soldier who assisted
the said official, and received a dollar for his
share, was let off with a month's cangue and
seventy blows. The Board herein laid down
the important rule that in cases of 'squeezing'
there are no principals and accessories — each
is principal and to be dealt with according to
the amount received (H. A. H. L. Supp. vol.
XIII. p. 48).
Perso7iation may be either for the purpose
of obtaining goods or money or even mere
personal consideration with others.
The most usual form is the personation of
an official or of official rank : as to personate a
commissioned officer §^ ^ w ^ : to personate
an official JS ff ^ tt : to pretend to be an
official to obtain some consideration in the
C. E. G. 28
434 I'KliSONATION
neighbourhood igff«1^li:BIfl5M*^ =
to personate a policeman jS !^ ^ ffi iT ^ ^'^
to assume a button without right ji^ p' TM ^•
To assume the character of an officer of
government, or to pretend to have official
authority to arrest a person, or to assume the
name and style of any person actually in office,
incurs a liability to a penalty of one hundred
blows and three years' transportation. To personate
as a near relative or an authorized agent of an
official, for the purpose of obtaining some
consideration in the neighbourhood (siipi^a)^ entails
one hundred blows. Where the personation is
accompanied by circumstances of aggravation,
involving — <^- g- — forgery, the penalty is
naturally severe. So whoever contrives a false
deed or commission, and personates as an official,
is liable to decapitation.
Another variety of the offence is that of
personating an offender — which, if the fraud
be discovered, renders the personator liable as
an accessory in the second degree to the
offence the actual offender has committed. But
where relationship comes in mitigation may be
CHEATING AND SWINDLING 435
allowed — as where the personator was taking
his elder brother's offence upon his shoulders
(H. A. H. L. Supp. vol. XIII. p. 41). The
practice of personating an offender is extremely
common in the province of Kwangtung, and
frequently occurs in cases involving capital
punishment. The offence is, indeed, not infrequently
condoned ; for a magistrate, compelled by the
system of responsibility for crime to execute or
otherwise punish somebody or see himself executed
or otherwise punished, will permit himself to allow
personation.
Personation is also commonly played off on
European residents, to whom all Chinese are
much alike ; but, in this case, the offence can
hardly be said to exist — for it is rarely
discovered.
Cheating and Swindling are ordinarily treated
as a species of larceny, the gravity of the penalty
varying with the amount of plunder 0^ ^ ^
Mt it '^S M S ■ Distinction must be- drawn
between the two offences — cheating 5^ ,|||
436 SWINDLING
is the obtaining property by fraud or deceit,
swindlinor ^ ,||§ is the obtaining- property b)^
fraud and conspirac)'. A good example of
cheating is that wherein articles are manufactured
for sale which are not so strono- durable or
genuine as they are professed to be — e. g.
silks, etc.
In the case of both offences there exist
special statutes applying to various parts and
trades. So of cheating at Peking, a special
statute applies for the protection of the licensed
brokers there against rascals setting up as their
agents and causing merchants trouble ft M
:A ^ ^ Wi • -^i^ instance of the application
of the statute is a case wherein an offender got
cargoes into his possession, pretending he was
the agent of a licensed broker, and passing
worthless bills. For this, under the statute, a
penalty of a mondi's cangue and military
servitude upon the frontiers was adjudged.
Sivindling cases often arise in connection with
substitution {v. Larceny) ; and as to such, a
special statute provides that when the amount
SWINDLING
t37
obtained by the swindlers in exercising this
practice exceeds Tls. 1 20 in value the penalty
shall be capital — a rule at first not extending
to actual coin or notes, but now covering such
cases also (P. A. S. P. vol. VIII. p. 27). So
in the case of Ch'ien Cheng-)ang 4J lE '^ >
wherein a band of swindlers got a tradesman
to their den, under pretence of selling him some
silk. When he got there, the silk was said not
to have arrived, and he was asked to exhibit
his ability to pa}- for it. The coin was — as
is the common custom — wrapped up ; and
during the inspection, the package dropped and
the coin was scattered. Carefully picking the
money up, the confederate lent the tradesman
a piece of blue cloth to wrap it up in — and also
offered him a cup of tea. Whilst enjoying the
latter, a confederate abstracted the tradesman's
package of coin, and substituted for it a similar
package containing cash. The Provincial Authorities
were at first of opinion that penal servitude for
life was all they could give the principal, and
three years apiece to the accomplices; but, on
its being pointed out that the case came under
438
the special statute referred to, the principal was
sentenced to strangulation {id.).
SECTION III — FORGERY
FORGERY
This is ordinarily merely looked upon as a
species of larceny, and punished more or less
severely, according to the amount of money or
value of property involved. In certain heinous
cases the treatment is exceptional and uncommonly
severe : so to forge an hnperial Edict, if the
forged instrument has been published, entails
decapitation for all concerned. To forge ordinary
official documents @ ^ ^ ^ P^ EP "^ is
looked upon as a kind of petty treason — the
penalty varying according to the circumstances.
So to forge a tax receipt, but making no use
of the document, renders the forger liable to
the mitigated punishment of three years' servitude
and one hundred blows (H. A. H. L. Supp.
vol. XIII. p. 56 — and end of this article).
N
439
Again, forging an official grant of common is only
visited with two years' servitude and ninety blows
— the seal being unlike those really in use, and
the benefit derivable from the forgery but small [id.).
On the other hand, in the case of Ho Wen-k'uei
W^ ^ ^ ' an offender who got a forged deed
made, and raised a large amount thereon, was
sentenced to military servitude for life as principal,
and his associates were sentenced to penal
servitude for three years (H. A. H. L. Supp.
vol. XIII. p. 57): and again in the case of En
Hui ^ ^». an offender who forged a series
of deeds, with a view to raising a loan on some
property, was sentenced to the same penalty
as the foregoing principal {id.) : and so, also,
where a tax-gatherer forged tax receipts, and
though the amount obtained thereby was trifling,
a similar penalty was inflicted {id). And with
the forgery of a commission jS 'W ^ w '1 ""^
probably like manner.
The forofine of an official seal or sio;net
f§ ^ ^ K^ f D pB with intent to defraud is
heavily punishable according to the amount
involved. If over ten taels, it is decapitation for
44°
the principal, and transportation for life for the
accessories. If under the aforesaid amount, it is
transportation for life for the principal, and
transportation for three )ears for the accessories.
An attempt to commit the above offence entails
the aforesaid penalties reduced one degree.
Where relationship operates, in accordance with
the ordinary rule in larceny, the ordinary penalties
are mitigated (H. A. H. L. vol. XIII. p. 60)
The expression tfB fM 'to counterfeit' (as
distinct from f§ ^ 'to forge') is often met with
in this connection — as in the phrase ^ ^
Pp i^ 'to counterfeit official documents'. Speaking
with all submission, the question here is purely
one of terms; and from the cases, 1^^ is not
so serious as f@ ^ •
SECTION IV — BURGLARY ETC.
BURCiLARY ETC.
This offence of itself can hardly be said to
exist in Cliina — it is a cjuestion of aggravation.
BURGLARY ETC. 44 I
The breakino- and enterine a house with the
intention of committino^ an offence therein is
dependent upon whether the offence was or was
not committed. If no offence be committed in
the house, the mere breaking and entering is an
aggravated form of simple trespass dependent
upon the nature of the offence intended, the
time, and the general circumstances. If an offence
be committed in the house, the breaking and
enterino- is a mere ao-orravation of the offence
committed. So if a larceny be committed therein,
it is commonly a form of robbery with violence :
if a rape, it is an aggravated case of rape : if
homicide, it is a case of homicide dependent
upon the attendant circumstances. For the question
of ao-oravation, the entr\- is in most cases an
important point to determine : but it can hardly
be said that such technicalities as an actual or
constructive breaking are considered. Again,
purely as a question of aggravation, to enter a
house by night ^ ^ (SiC A A ^ is more
serious than to do so by day. To enter a boat
in which a person lives is the same as to enter
a house.
442
The offence of sacrilege is viewed apart, and
as an offence against Religion [g. v?).
ARSON
This includes the setting fire not only to
buildings, but also to other objects. The offence
is regarded variously -, according to the nature
of the act — whether it be intentional, or in
some sort accidental; according to the nature of
the object set fire to ; according as to whether
or not injury to life or limb resulted; and finally
in connection with any circumstances for aggravation
or mitigation.
As regards intentional arson, the intention
will be gauged by reference to the circumstances ;
and if the fire be consequent on an illegal act,
intention will be presumed {v. also infra —
Attempted Arsoii).
As regards the object set fire to. If a person
wilfully set fire to his own house, he will receive
one hundred blows : if with damage to neighbouring
houses, to one hundred blows and three years'
transportation : if the case be aggravated by
robber)-, the penalty will be decapitation sul)ject
443
to revision. Setting fire to stores, whether the
stores be in a public or private building, and
provided there be clear proof of guilt, is punishable
with decapitation subject to revision for all
concerned. Setting fire to the military stores in
the depots on the frontiers is visited with
decapitation and exposure of the head for the
principal — while the offender's family will be
liable for the amount of the damage done, and
in default punishment. Setting fire to property
in barns or to haystacks is punishable with one
hundred blows and transportation to a distance
of 3000 // — while if the offender has any
property the value of that destroyed is to be
made good out of it. For a person to set fire
to his standing crops is the same as to set fire
to his own house ^ ^E ife 'Ji g B ^ ® M
'Ji S B S M ftl ^ (H. A. H. L. Supp.
vol. XIV. p. 45) — if injury to others ensue.
To set fire to public buildings is a subject of
aggravation — and an honorary portal is considered
a public building (H. A. H. L. Supp. vol. XIV.
p. 40).
As regards cases where there is resulting
444
injury to the person or loss of life the penalties
are uniformly heav)'. So in the case of resulting
injury to the person, the principal will be sentenced
to decapitation subject to revision, the accomplices
to military servitude on the frontiers, and persons
induced to assist to one hundred blows and
three years' transportation ; and in the case of
resulting loss of life, the principal will be
sentenced to decapitation, and the accomplices
to decapitation subject to revision. Moreover,
where life is lost, it is immaterial whether the
deceased was within a buildino- or structure set
fire to or not ; as in a case wherein an offender
malicioush- set fire to a wood-stack, and the
fire spreading to the cover on the hillside, a
grass-cutter got burnt thereby — for which the
full penalt\- was adjudged.
If the fire be put out, and the neighbours
assist thereat at expense of danger to life or
limb, but neither they nor anyone else is actually
injured, the principal will receive two months'
cangue and military ser\'itude for a period, and
the accomplices three months' cangue and one
hundred l)l()ws.
445
As reofards a fire arisino- from accident, the
Court considers the proximate cause of the accident.
There are accidents and accidents. A person
maliciously sets fire to a building, intendina to
burn only that building- : but the fire spreads
until half a town is consumed — the offender
will not be allowed to plead that he only
intended to destro}' the one building, and that
the destruction of the others was accidental.
The circumstance is not one for extenuation ,
but for aggravation. So if a person maliciously
sets fire to his tailor's, and the fire consumes
also an adjacent honorar}- portal, the case will
be aggravated both by reason of the additional
damage, and by reason that the damage was
done to a public monument.
Again where the accident happened during
the commission of another offence, the offender
will be punished for arson aggravated by the
additional offence. Thus if the offence be larceny,
the case will come under the clause ''Arson
"with a view to personal advantage — " and
this, apparently, no matter how accidentally the
fire occurred. So in a case wherein a thief,
446
lighting his pipe in a wood-shed where he was
plundering, was pounced upon by die master
of the house — and in the ensuing scuffle the
pipe was knocked out of the offender's hand,
the slavey set on fire and the house burnt.
Here according to the Board, the fire was
traceable to the offender's intent to steal, and
the case aggravated to the highest degree : to
punish the offender for larceny was considered
insufficient, and the offence was brought in as
the capital offence of arson with a view to
personal advantage — with (however) circonstances
atkmmnles WH.^M^t WC'K^ Ml'^M
:)§ "t ff 1^ ^J S i^ - # - and the penalty
of one hundred blows and transportation for life
3000 li distance adjudged (H. A. H. L. Supp.
vol. XIV. p. 41). And similarly so in the case
of Yang Erh ^ ZL , who having committed an
act of larceny, was running away, and while
doing so, dropped a slow-match within the house
where he had committed his offence, and thereby
set the house on fire (H. A. H. L. Supp. vol.
XIV. p. 42). Indeed it seems to be the general
ruling, that if a fire can be traced to a person
447
who commits an act of larceny he will be held
responsible under the above clause ; and under
exceptional conditions, as in the above case,
the penalty will be mitigated.
And the rule for mitigation also applies
apparently, and similarly exceptionally, in the
case of fire resultant upon another offence.
Lastly there is the case of accident pure and
simple. This is by no means in general a
consideration for complete excuse — on the
contrary it is punishable. A person who accidentally
sets fire to his own house is liable to a niiniimiin
punishment of forty blows — and if the fire
spread to other buildings to fifty blows. And
so also with an increasing penalty in the case
of accidentally firing honorary portals, monuments,
public residences, etc. etc. Where the person or
persons involved were under some special liability
for the safety of the object set fire to, the
case is more obvious. So in the case of a junk
forming one of the rice convoy, wherein a sudden
squall arising, the mast shivered, and the sail
dropping on to a stove at which the man- at -
-the-wheel was cooking his supper caused the
448 ATTEMPTED ARSON
vessel to catch fire. For this the captain of
the junk was sentenced to eighty blows, and
the official in charge of the convoy to a month's
cangue — and be it noted, not for mere liability
for simple damage sustained, but for arson (H.
A. H. L. Supp. vol. XIV. p. 40).
Attempted Ai^sou. — Though a person has
merely attempted the offence , he may be
punished with a mitigated penalty for malicious
arson — and the intent to attempt the offence
will in some cases be inferred. So in an instance
where the offender had thrown a bomb with a
lighted match attached into a shop, with a view
of frightening the proprietor, and was sentenced
to a mitigated penalty of one hundred blows
and three years' transportation for malicious arson
— although no damage ensued (H. A. H. L.
Supp. vol. XIV. p. 41).
CHAPTER XIII
OFFENCES AGAINST THE PEACE
SECTION I — GENERAL CONSIDERATION
GENERAL CONSIDERATION
The offences dealt with herein as Offences
against the Peace are, on the whole, familiar
to the English student in this connection : but
the mode of consideration differs widely, and
further, to meet special conditions in certain
parts, special treatment has been devised in
place of the ordinar\- law on the point. Indeed
the local authorities may be said to possess
very considerable extraordinars' powers for the
preservation of the public peace.
As regards the ordinary inode of legal treatment,
the rules touching unlawful assemblages, rout,
C. E. G. 29
45° GENERAL CONSIDERATION
and riot, are meagre — but somewhat approximate
to English law. The most interesting view is
undoubtedly the constitutional. Have the Chinese
a right to assemble without molestation ? This
right exists within certain limits — and not
such narrow limits as at first sight appears to
be the case. For, as regards the numbers,
though three is indeed considered a crowd {zk
p. 452) where the assemblage is of such a
nature as is sufficient to inspire an ordinary
Chinaman with fear {id.), yet if the assemblage
is not of that character the term will not apply.
Accordingly the question is very largely one of
construction. It is not then merely as regards
numbers that any limit has been fixed, and
inspection of the law will show that the manner
of assemblage, the conduct of those assembled,
and their equipment are primary considerations
— and any or all of these points proved,
the question of numbers becomes important.
Again as regards the term 'equanimity of an
'ordinary Chinaman' — is not this a question
purely of construction } Ikit who can possibly
gauge such an equanimity.'^
GENERAL CONSIDERATION 45 I
As regards affray, the term differs considerably
from our \new ■ — havine a wider sio-nification ,
and being- closely involved in its very essence
with other offences.
In respect of the special treatment of Offences
against the Peace , it may be noted that
clan fights [q. v.) occur especially in Kwangtung
and Fukien, are the direct result of the clan
system {v. hitrodudion), and cause perpetual
turbulence and often great loss of life. Many
allusions to these occurrences appear in the
Peking Gazette, and the evil seems to be an
organised one, not capable of effective repression
by the administration. Even where a case
attains to judicial process, the employment of
false witnesses, and assumption of responsibility
by the whole clan, renders it a hard matter to
reach a fair issue.
452 ORDINAkV TREATMENT
SECTION II — ORDINARY TREATMENT — riot etc. — affray
OR DIN A R ) " TREA TMEN T
RIOT ETC.
Distinction is drawn in regard of imlawful
assemblages and riots as to the number of those
engaged, the specific purpose for which those
comprising an assembly have engaged, whether
the members thereof are armed or not, the
manner of assembling, the actual injury or damage
done, and the place wherein the assemblage or
riot takes place. The primary point is however the
assembling; this proven, the other considerations
are suggestions for aggravation or mitigation as
the case may be. A riot is merely considered an
aggravation of the offence of unlawfully assembling.
A crowd assembling together in such manner
as to disturb the equanimity of an ordinary
Chinaman is liable to summary justice. Three is
a crowd ^ (H. A. H. L. vol. VIII. p. 50).
It is immaterial that each individual member of
the crowd behaved quietly and in accordance
with law ^@^ft-
453
If an unarmed mob to the number of
forty or fifty assemble confusedly together, and
the members thereof then proceed to commit
acts calculated to inspire fear in the mind of an
ordinary Chinaman, the aforesaid members will
be treated as ruffians 3t m or rowdies t^ ^
— and the principals sentenced to immediate
decapitation , and the minor offenders to
strangulation ; and a mob of lesser numbers, but
armed and resisting the authorities, will be similarly
treated. It seems, however, that if the mob had
some show of reason on its side, the case may
be treated differently — with much mitigation :
as in the case of Wang Yu-shan ^ ^ UJ and
others — who behaved turbulently in endeavouring
to recover land, which had once belonged to
them, and since been flooded (H. A. H. L. vol.
XVI. p. 20).
Where persons assemble in the public highways,
with a view to forcibly oppose an official
who has been deputed for some duty , such
as the maintenance of the peace, the principal
is liable to a penalty of too blows and
transportation for life to a distance of 3000 //,
454
If in such case the aforesaid official be wounded,
the principal will be sentenced to strangulation
subject to revision. Where in regard of the latter
point the mob numbered ten or niore, or
regardless of the number, if the aforesaid official
be killed, the principal or principals become
liable to decapitation, and accessories to one
degree less punishment.
AFFRAY ^ H^
This term is not used in our sense, and
includes both chance and premeditated encounters.
It is not really considered so much as an offence
against the public — though punishable as such
— but its true essence is in the fighting and in
the injury arising therefrom. Of itself it is barely
treated in Chinese law books, and its importance
seems to lie in considerations arising out of
it — conveniently, if illogically, dealt with in diis
jjlacc.
(a) And first of killing in affray, a portion of
the law intimately connected with ordinary
homicide on the one hand and the law of principal
and accomijlice on the otlier, but from the fact
455
of the killing taking place in affray, possessing
strongr individual features of its own.
In premeditated fatal affra)s, if the originator
of the affair takes part in it and inflicts serious
injury on the deceased he will be held principally
responsible : but if he has not done serious injury
to the deceased, and the fatal wound can be
traced to someone else, the latter will be held
responsible as principal, and the originator only
so in the second degree. The responsibility still
attaches to the originator, if it cannot be
ascertained who struck the fatal blow ; and even
though the originator be not capitally responsible,
he will be sentenced to life transportation as
against a term only for an accomplice (H. A.
H. L. vol. XXX. p. I).
If the affray was unpremeditated, the person
by whom it was commenced will be held to be
the principal. Where several serious injuries are
inflicted, and the victim dies on the spot, the
person striking the last fatal blow may be held
responsible {id.) : but the mere fact of striking the
last blow does not necessarily make the striker
princij)al, if others can be shown to have inflicted
456
the fatal injuries, and that done by the striker of the
last blow was comparatively slight (H. A. H. L.
vol. XXX. p. 7) — for the rule only applies
when it cannot really be distinguished who struck
the most serious blow (H. A. H. L. vol. XXX. p. 8).
For a person to say during an affray that
he will do for a man is evidence of active
participation (z>. case of Yang Cheng-hsiang ^ lE
y H. A. H. L. vol. II. p. 23).
It is an aofs:i'a-vation of the offence that an
offender had no personal interest in the case;
but it would seem, even though knives be used,
that such person will merely be sentenced to
strangulation subject to revision, if there was
no deliberate intention to kill (H. A. H. L.
vol. XXX. p. i).
It is an aggravation that a number of other
people were asked to help, and the offence of
the person so asking will be the more severely
visited in ratio with the number of lives lost;
and if two persons belonging to the same family
are killed the sentence will be strangulation, and
if three, decapitation without appeal — the actual
perpetrators of the homicide being sentenced to
457
Strangulation subject to revision (H. A. H. L.
vol. XXX. p. 12).
It is also an aggravation that a person kill
three others in an affray, and although not the
principal his sentence will be strangulation without
revision (H. A. H. L. vol. XXX. p. 14).
As regards mitigation, if the person killed
was not the person the originator intended to
beat or one of his relatives, and the friends of the
originator killed him by mistake, the responsibility
of the originator is reduced a degree (H. A. H.
L. vol. XXX. p. 15). Again the capital sentence
will be commuted to transportation for life, if
the wound though in a dangerous spot is in
itself insignificant, and the victim dies from taking
cold in or through it ten days or more after
the wound was inflicted. In a case, however,
where a man was knocked on the head with
a rolling-pin and the bone laid bare, the Board
declared that the case did not come within the
statute — though the victim lingered fourteen days,
and died of cold then (H. A. H. L. vol. XLIV.
p. 90). The rule does no.t apply where the
wound was in the first case severe.
458
As regards the effect of relationship on the
penahy in fatal affrays. If a relative of a
person killed in a fight then and there beats
to death the person responsible for the aforesaid
homicide, the capital sentence will be commuted
to military servitude — but the relationship
must be by blood and not simply by marriage
(H. A. H. L. vol. XXX. p. 25).
If in a fight between two families, the
respective murderers on either side are relatives
of the men killed upon their side, the capital
sentence will be commuted to military servitude
(H. A. H. L. vol. XXX. pp. 19—20): but
the killing must be in the same affray, and
not on two fights arising, though it may be
out of the same affair (H. A. H. L. vol.
XXX. p. 36).
{d) Secondly of the use of fire-arms in affray.
If a person discharge a gun in the course
of an affray, intent will be assumed , and the
firer will be sentenced to decapitation if he
kill anyone (H. A. H. L. vol. XXX. p. 43).
And the dischar":e will be held to have occurred
intentionally, though done in self-defence (H.
SPECIAL TREATMENT CLAN KIGHTS 459
A. H. L. vol. XXX. p. 46). And if any abuse
has been exchanged, the case will be one of
killing in affray, whether the weapon went off
by the act of its possessor or his antagonist ;
as in the rather hard case of Tseng Liang-ming
a ^ ^ , who interfering to stop a row,
interchanged some angry words with one of
the parties, who thereon struck the intervener
with a stick, and the latter article touching a
gun that the intervener was carrying, caused
it to explode 'and kill the striker (H. A. H. L.
vol. XXX. p. 48 : v. also Homicide — Fire-anus).
SECTION III — SPECIAL TREATMENT — clan fights
SPECIAL TREATMENT
CLAN FIGHTS IN SOUTH CHINA
In the south of China special provision is
made for the repression of the clan fights
which flourish there, and care has to be taken
in dealing with affrays to settle whether they
come under these special clauses or not. That
460 CLAN FIGHTS
there are a number of people engaged, and
that one side belong to one part of the
country and the other side to another, does
not necessarily constitute a clan fight. The
points to determine are whether there was a
feud to start with, whether the fight was
premeditated, whether men were hired to take
part in it (there being regular professional
fighters — free-lances — open to engagement),
and whether the factions went armed to the
field. Where it appears from these facts that
it was a deliberate clan fight and not a chance
or ordinary affair, the organiser will be held
responsible as well as those actually taking part
in the fight — the punishment being regulated
by the number of men there were engaged
upon the side of the organiser, and also by
the number killed upon the other side. Nor are
both sides to be brought under the clauses,
unless the fight was prearranged between them —
the attacking side ordinarily coming under the
operation of the special statute.
To kill in a clan fight is styled ^ ^ ^
CLAN FIGHTS 46 1
The followinor case illustrates the distinction
between a clan fight and an ordinary affray.
A hill held in common by certain villagers
was secretly — and of course illegally —
leased by one of the villagers to a man Chang,
who planted it with young pines, and thereby
caused protests from a family named Tsao.
Finding the young pines pulled up shortly
afterwards, Chang naturally suspected that the
mischief had been done by the Tsaos, and
with three of his relatives armed with swords
and bludgeons proceeded to the gate of the
Tsao family — and with much abuse challenged
them to come forth. The Tsaos, eight in
number, likewise armed with swords, promptly
came out to argue the matter — and a fight
ensuing, the four Changs were killed by four
of the Tsaos.
As the case merely originated in the defence
of their gate by the Tsaos, the affair could
not be considered as an ordinary clan fight ;
and it was held that the case was made up
of four distinct affrays, for which each principal
was responsible only for his share — and the
462 CI.AN FIGHTS
four Tsaos who were acknowledged to have
inflicted the most serious wounds on the four
Changs were sentenced to strangulation subject
to revision, while two other Tsaos were
sentenced to transportation for wounding with
sharp instruments, and the two remaining
set free.
CHAPTER XIV
OFFENCES AGAINST THE STATE
SECTION I — GENERAL CONSIDERATION
GENERAL CONSIDERATION
The distinction between offences against
the State and other groups of offences is not
always clearly marked. Offences against Religion
are, in a manner — and in especial in certain
cases — offences against the State ; so are
offences against Justice, and offences against
the Peace. Even as contrasted with offences
against the Individual, the distinction is not
always clear. So of larceny, a small band of
robbers may be viewed by the Government
merely as a group of offenders guilty of
offences against the Individual ; but where the
464 GENERAL CONSIDERATION
band increases in numbers and resources —
is, in short, an organization capable of defying
the State — the Government naturally views
their actions with the more jealous severity
attaching to an offence against the State.
Offences against the State are capable of
mental classification into three categories.
Firstly, cases where the person of the Head
of the State is directly and primarily placed
in danger. Secondly, cases where the existence
of the State is directly and primarily imperilled,
though the person of the Head thereof is not
directly and primarily placed in danger —
e. g. rebellion, sedition. Thirdly, cases where
the existence of the State is indirectly imperilled,
but not being a direct and primary source of
danger either to the person of the Head of
the State or to the existence of the State —
e. g. piracy, coining -. for all such offences
tend to destroy proper confidence in the High
Powers.
The offences under tlxis topic are interesting,
inasmuch as they indicate the general desire
to reconcile two principles — supremacy of
GENERAL CONSIDERATION 465
the state and absence of tyranny. A further
peculiarity is that though the Head of the
state is constitutionally personally supreme ,
the essence of the law on the point, while
fully recognising this personal supremacy, is
to conserve the state for the benefit of the
community. It may be added that this peculiarity
is completely in accordance with the general
principles of the system, and is not inconsistent
with the well-known truth that the reigning
Emperor is absolute : for, as has been shown
by a distinguished writer. His Imperial Majesty
reigns not by divine right, but only so long
as can be demonstrated that the government
is beneficial to the general community. This
latter point is the kernel of that much debated
phrase fien tao ^ ^ — by some translated
'rule of heaven', perhaps more efficiently, simply
'rectitude'.
The consideration of these offences is in
general simple and straightforward — though
a tendency may be remarked to entangle by
variety.
466 TREASON ETC.
SECTION II — TREASON ETC. PIRACY
TREASON ETC.
The offence of high treason ^ ^ ^Ac ^
is of two varieties ; the first includes all attempts
to subvert the established government ; the
second includes attempts to kill the Sovereign,
attempts to destroy the palace in which he
may be residing, or the Imperial ancestral
temple, or the tombs of his Imperial ancestors.
By construction, offences not falling strictly
within this definition may also be included.
All persons convicted of having taken part
in this offence, whether as principals or as
accessories, are liable to the slicing process
— and their property is forfeited to the
State. Moreover not only does the extreme
penalty attach to the actual parties in the
offence, but all male relations in the first
degree over the age of sixteen will be decapitated
and their heads exposed : and similar treatment
will be extended to all male relations, however
distant, and over the age of sixteen, who were
TREASON ETC. REBELLION 467
residing under the same roof with the traitor
or traitors at the time of the commission of
the offence. The wives of the traitor, and his
children and grandchildren under sixteen years
of age, will be given to meritorious bannermen
in and around certain capital cities as slaves
— unless they have passed into another
family by adoption or marriage, or even if
they have been sold, when they will escape
any consequences (H. A. H. L. vol. XII. p.
31). The wife of an elder brother will not
be involved {id.). In respect of certain classes
of traitors — e. g. Christians — the families
are to be sent to the frontier posts, as it is
inexpedient that they should be quartered in
large numbers in the capital cities. Small
children are to accompany their mothers. If
the masters to whom the families have been
assigned find them useless, and refuse to be
troubled with them, they are to be sent to
the Amoor or to the Pamirs as slaves (H.
A. H. L. vol. XII. p. 34).
Redellion ^ ^. — This offence is defined
as the renunciation of allegiance, and all
468 TREASON ETC. — MISPRISION OF TREASON
parties to the offence — whether principals or
accessories — are Hable to decapitation and
exposure of the head : parents, grandparents,
brothers, and grandchildren of the offenders
will be liable to transportation for life : wives
and children will be sent into slavery. In grave
cases of rebellion, the sons are to be retained
in prison, and on attaining the age of sixteen
they are to be castrated {q. v.). Nor will the
law allow an octogenarian and bedridden mother
of a rebel to commute by fine her sentence
of slavery (H. A. H. L. vol. XII. p. 35).
Relatives may be kept in prison for twenty
years awaiting confrontation with escaped rebels
— although themselves be guiltless [id.).
The offence of rebellion, it would seem,
cannot be forgiven if any overt act in furtherance
thereof has been committed, though under
compulsion (H. A. H. L. vol. XII. p. 44).
Misprision of treason. — The bare knowledge
or concealment of high treason is punishable
with transportation for life : the bare knowledge
or concealment of rebellion is punishable with
tran.sportation for a term.
469
PIRACY
Pirates with us are rovers on the sea, but
in China there are land pirates also — bands
of robbers livinof on the islands or those
parts of the coast where law is only represented
by the casual presence of occasional constables,
or desperadoes, who do perhaps a little fishing
or occasional agriculture for their living, but
combine illegal courses with their more legitimate
occupations, and plunder a passing junk or
wealthy pawnshop in the neighbouring towns.
The technical general term for a sea pirate
is y^ ^ : but the more comprehensive term
5^, ^ is also commonly applied.
The law regarding piracy is naturally severe,
special provision being made for their speedy
punishment when they fall within the clutches
of the Courts. The principal or real pirates
jE ^ are to be instantly beheaded near the
scene of their offences, and their heads exposed
as an example : and if they have resisted the
troops sent after them, the penalty is lingering
death. The accessories are not so hardly dealt
47°
with. So in the case of Mi Yu-fii 0^ ^ ^ .
where the principals who boarded a vessel and
plundered it were executed, but a certain Wan
Ch'eng ^ )^ , as an accessory, was sentenced
merely to frontier slavery •, and this although
he appeared to have willingly joined the principal
pirates in chasing the vessel boarded, to have
boarded the said vessel, to have assisted in
tra'nsporting the plunder to the pirates' boat,
to have shared the proceeds, and to have
aggravated his offence by keeping out of the
way for some ten years, and blacking the
eye of the policeman by whom he was ultimately
arrested. Those only are considered as principal
or real pirates who use violence, or who go
below to rummage for plunder, or who take
part in frightening the persons robbed (H.
A. H. L. vol. XIV. p. 54). The case of
Wang Yu-sheng ^^^ jj and others affords
also a good illustration of the law, and lays
down further definitions on the point. Therein,
the principal pirates were executed ; nineteen
men, for taking part in carrying off the
])lunder, were sentenced to be branded and
471
sent to frontier slavery ; and two men and a
youth retained on board the pirate vessel
for the recreation of the crew, and whose
part in the proceedings appears to have been
purely passive — or perhaps rather impurely
passive — were sentenced to transportation
and one hundred blows. It was also laid
down that where the culprits are merely
charged with having been compelled to lend
their services on board a pirate as sailors
or clerks, cooks etc., they shall only be
sentenced to three years' transportation : and
if the only charge is presence on board the
pirate vessel against their will, or even if
the culprits have rendered service against
their will, the case .is to be dismissed, and
the offenders sent back to their homes.
To hold commerce with pirates -^ ^ 7^ ^
is rigorously treated.
It is a capital offence to provision professed
pirates •, but supplying them with water or
water-melons or cabbages or condiments is
not held to constitute the full offence, and is
punished, according to the gravity of the case.
472
with military servitude or transportation for
life (H. A. H. L. vol. XIV. p. 62).
To buy plunder from pirates is punishable
with one hundred blows and transportation
for three years for a first offence, military
servitude for a second, and frontier slavery
for a third (H. A. H. L. vol. XIV. p. 58).
The Government has found however, that
the repression of piracy by preventive measures
is a difficult task, and sundry paternal provisions
have been made from time to time — with
a view to eradicate the offence by kindly
concession. Thus it is laid down that pirates
who have given themselves up and have only
twice offended may commute their due
punishment by military service. If however,
after they have enlisted, they run away, the
deserters are to be sent to Siberia as slaves ;
but even such deserters who of their own free
will return to their duty are allowed to expiate
their offence with one hundred blows and one
month's cangue. If the offenders run away
before their enlistment, so as to avoid it, they
are merely given eighty blows and one month's
473
caneue. If the offenders are not amenable to
discipline, they incur the sentence of perpetual
imprisonment ; but a casual or petty offence
does not come within this provision (H. A.
H. L. vol. XIV. p. 65).
The offence is even entirely excused under
another provision, whereby if pirates give
themselves up, and make a clean breast of
all that they have done rendering them liable
to punishment, they will be pardoned in respect
of all previous offences not capital — and even
the latter are not to be too particularly enquired
into, if there be no private prosecutor to be
appeased (H. A. H. L. vol. XIV. p. 68). But
the confession must be full, and the pardon
will not cover more than the culprit divulges.
In conclusion, it may be added, that this
offence is generally considered in Chinese law
under the head of larceny.
SEDITION
As with us the term is hardly to be defined,
but is in fact any practice by word or deed
or writincr calculated to subvert the foundations
474
of the realm or of society and disturbing the
tranquilHty thereof. In a sense, the term is
wider than in English law — including not
only offences against the state per se, but
offences against the state as the guardian of
the fundamental rules which regulate the whole
community.
To indicate the variety and range of the
offence, it seems to be considered seditious
to use artful words and provoke one as yet
innocent of a capital offence to commit some
such grave offence as murder : on the other
hand it is sedition for a group of officers to
intrigue together and impede the Government.
The offence in its oravest character is
punishable by decapitation certain. To
disseminate seditious handbills entails
decapitation certain for the principals, and
subject to revision for accessories — and persons
who print, distribute, or shout such in the
streets are liable as accessories.
Most commonly the offence of sedition is
considered in relation with another, such as
the foundation of unlawful societies [infra) ;
UNI-AWFUL SOCIETIES ' 475
and not a few points on the subject are
dealt with under the Code clause relating to
witchcraft.
U^ilazvful societies. — Communists, Socialists
etc., would not have a pleasant time in China.
Brotherhoods where all are equal and the
leader is chosen irrespective of his age —
where, as they put it, a young man is head,
and no regard is paid to age — are considered
subversive of the foundations of society.
Distinction is drawn in regard of the number
of those forming the society : if the brotherhood
number forty or more members, the elder
brother is liable to capital punishment without
revision, and the other brothers to transportation
for life to the desolate regions of Canton
Yunnan etc. ; if the brotherhood number less
than forty members, the elder brother will
be sentenced capitally, and the others to
transportation for life and servitude 3000 li
distance (P. A. S. P. vol. VII. p. i). The
law on the point is also applicable to members
of illegal sects.
Secret societies flourish however in China,
476 MAKING ETC. ARMS ETC.
though repressed with severity when occasion
offers : they are in fact the leading source of
irritation to the Government from within {v.
nearly any number of the Peking Gazette).
Members of a secret society or an illegal
sect are phrased ?R ^ W ffi. and a
conspiracy of persons banded together by oath
SECTION III MAKING KTC. ARMS ETC. UNLAWFUL
DEALINGS WITH PUBLIC STORES ETC.
MAKING, POSSESSING, AND TRAFFICKING IN
ARMS AND AMMUNITION
The law relating to this point is, on the
whole, fairly severe, and varies, in general,
according to the nature of the arms or
ammunition.
And first of fire-arms. Distinction is made
between weapons that carry merely shot and
those that carry bullets. So in a well-known
MAKING ETC. ARMS ETC. 477
case where the maker of some ten fowlinof
pieces was sentenced to one hundred blows,
and another person for purchasing and trying
one of them to forty blows (H. A. H. L.
vol. XI. p. 52). Had the weapons in this case
been ordinary matchlocks, the maker would
have been sentenced to the canorue and one
hundred blows for the first weapon made, and
one degree more punishment for each additional
conviction — but as it was clearly shown
that the weapons could only carry shot, the
cangue was remitted. The guns themselves
were however seized and destroyed, and the
purchase money confiscated.
The making and possessing cannon is
seemingly treated a degree more severely
than is the case with matchlocks. Ging-alls are
to be considered as cannon (H. A. H. L. vol.
XI. p. 59).
The illicit manufacture of arms and traffic
therein is, in spite of the law thereon, common.
It seems that the stated penalties are not
heavy enough, and extraordinary measures
are announced from time to time ; usually the
478 MAKING ETC. ARMS ETC.
proclamations commence by offering the value
of arms voluntarily surrendered, and in default
thereof prescribe seriatim heavy penalties (H.
A. H. L. vol. XI. p. 60).
Persons requiring fire-arms for their protection
against wild beasts are accorded exceptional
treatment, and on making application can, if
there be good ground for their request, obtain
permission to possess and use fire-arms, — the
weapon being registered, marked with the
name of the possessor, and periodically inspected
(H. A. H. L. vol. XL p. 59).
Moreover the law as to fire-arms does not
apply to Manchuria — the Emperor Taokuang
having been of opinion that it was a very
desirable thing for Manchus to make weapons,
and holding it was absurd to say that the people
were not to possess fire-arms, on which, living
as they did by hunting, their livelihood depended
(H. A. H. L. vol. XI. p. 53).
As regards gunpowder , etc. Making
gunpowder for sale, though none has actually
been sold, renders the guilty party liable to
one degree less penalty than he would have
MAKING ETC. ARMS ETC. 4^9
incurred had he sold it (H. A. H. L. vol.
XI. p. 61). Selling gunpowder to salt smugglers
is punishable with military servitude on the
frontiers. Selling over 50 catties (about 70 lbs.)
of sulphur and under 1 00 catties is visited with one
hundred blows and three years' transportation.
Slow matches may be manufactured and sold
for legitimate purposes freely (H. A. H. L.
vol. XI. p. 56).
As regards mere articles of military equipment
— such as armour, shields, cartridge bqxes,
powder flasks, flags, uniforms, etc. — the simple
possession of one such article is punishable with
eighty blows; and the penalty is increased a
degree for each additional article. The manufacture
of the above articles is one degfree more
severely punished than the possession thereof.
In no case, however, is the penalty to exceed
one hundred blows and transportation for life
to 3000 li distance.
UNLAWFUL DEALINGS WITH PUBLIC STORES
AND PROPERTY
Such offences commonly arise in connection
4S0 UNLAWFUL DEALINGS WITH PUBLIC STORES AND PROPERTY
with the receipt and issue of stores from the
• pubhc treasuries and storehouses.
An official who receives goods of an inferior
quality, when he should have received superior
goods, will be liable to the ordinary penalty for
embezzlement of public property, but proportioned
in accordance with the excess in value of the
superior over the inferior goods : and a similar
ratio is adopted where fresh goods are
improperly issued instead of those in stock.
Where an official who has charge of public
clothes, utensils, and the like, employs or lends
the same for private purposes, a flogging is
incurred ; and furthermore, if not returned within
ten days, the article so lent or employed
must be exactly replaced.
Curious instances often arise in respect of
the rations issued to bannermen. So when a
bannerman dies, the relations sometimes forget
to report the death, and send some one to
represent the deceased at the time when the
rations are issued. Moreover, where the issuers
of the rations are aware of the circumstances,
an arrangement is usually come to, by which
POSTAL OFFENCES 48 I
the relatives agree to take short weight
the issuers taking the remainder.
SECTION IV POSTAL OFFENCES COINAGE OFFENCES
POSTAL OFFENCES
The Post Office in China not being a general
post, but existing solely for the conveyance
of official matter (there being numerous private
agencies for private matter), the law on the
point, though somewhat bulky, concerns in the
main the administration of the department.
Private matter is, in fact, frequently carried —
but by law must not exceed a certain limit
by weight : taking such private matter is a
favour , and it does not appear that an
official who detains or steals or destroys such
will be punished otherwise than an offence
committed in his private capacity — the penalty
will not be exceptional, if indeed any penalty
be inflicted at all. On the other hand, delay
48 2 COINAGE OKl'ENCES
or want of vigilance in the conveyance of
official matter is liable to be visited by heavy
penalties ; and a fortiori the destruction or
interception of such matter.
Appropriation of official e?tve lopes for
private purposes. — Special correspondents
would have hard times in China ; so in the
case of Li Chia-shan ^ ^ [1] , who desirous
of g'ratifying the want of the provinces for
early copies of the Imperial (Peking) Gazette,
begged, borrowed and stole official envelopes
in which he forwarded them — everyone
concerned coming more or less to orief in
consequence, although the Board saw that
there was some excuse (H. A. H. L. vol. LI.
p. 3. — V. also p. 412 et seq.).
COINAGE OFFENCES
Such offences are, on the whole, treated
very severely. To counterfeit the coin of the
realm — copper cash ^L ^ llBJ ^ — is
punishable by strangulation : and accessories
are liable to one degree less. To manufacture
bad sycee or false dollars is less gravely
COINAGE OFFENCES 483
considered — three years' penal servitude
only (H. A. H. L. Supp. vol. XIII. p. 62):
to cast iron , zinc , tin , or leaden cash is
held a similar offence with the latter. The
above penalties are, however, subject to
aggravation or mitigation according to the
amount represented by the false coin.
As regards the frequent offence of washing
or alloying a base metal with a precious
metal, the former treatment is more gravely
considered than the latter ; so to alloy lead
and silver to the extent of even 80% of the
former metal is regarded as a fit case for
mitigation.
To clip or hie the coin of the realm is
punishable with one hundred blows.
The primary offence is considered to have
been to some extent committed if preparations,
even in slight measure, have been made : so
even to have made a mould is considered coining.
The owner of the premises wherein the offence
took place is liable in a lesser degree ; and
so also are the ward elders and neighbours
— it seems to be a legal (and not merely a
484 COINAGE OFFENCES
society) duty in China for one neighbour to
have a complete knowledge as to the state of
another's exchequer. Simple workmen hired to
blow the bellows are merely bambooed.
As regards the circulation of the bad coin,
the offence is heavily punishable, and varies
according to the amount involved. A person
will be considered to have circulated bad
coin, who has merely bought such with a
view to the purpose (H. A. H. L. vol. LI.
p. 34) — although the coin has not passed
out of his hands ; and running such coin past
the barriers, or even simply hiding it away,
incurs a similar liability. Merely stringing together
bad cash which has been received in the way
of business is punishable with a mitigated
penalty [id.).
OFFENCES I!Y OH'ICIALS 485
SECTION V — OKFEiNXES BY Oll'ICIAI-S — MISCELLANEOUS OEKENCES
OFFENCES BY OFFICIALS
Ordinary offences — e. g. larceny —
committed by officials form a consideration in
the general law. The nature of the offence
is the same, but the position of the offender
introduces certain variations. A cursory view
of the Code will show however that many
clauses are set apart for offences by magistrates,
offences by civil officials, offences by military
officials, etc. These offences, for the most
part, relate to the failure to discharge certain
special obligations to the State. So it is an
heinous offence for a high official to appoint
another official on his own authority : it is an
heinous offence to recommend as deserving of
high promotion one who is not so deserving :
it is a grave offence to appoint supernumerary
officials without leave, to neglect making proper
reports, or to tamper with an official seal.
Bare mention of such offences is sufficient :
two or three somewhat striking points may
however be noted.
486 OFFENCES 1?Y OFFICIALS — INSUBORDINATION ETC.
Insubordination etc. — It is a high offence
f(3r an officer, military or civil, to desert his
pyst — punished capitally if he runs away
because he has committed an offence, and
with transportation to Siberia if it be merely
for his own purposes. To simply leave a post
without permission is not looked upon as desertion
therefrom, and is simply visited with three
years' transportation. A merely expectant
official, though not allowed to go and come
as he likes, will not be treated in this connection
with the same severity as the holder of a
substantive appointment (H. A. H. L. vol.
V. pp. 73 — 75). And so, furthermore, in still
lesser degree, as regards very minor officials
in respect of places where they are "on duty
"or on guard" tt 00 ^^tt-
To strike a commanding officer, or an officer
under whom the assailant is for the time beincr
serving, is visited with immediate decapitation :
but if officials or superior officers bring insult
on themselves by want of proper dignity, or
conduct unbecoming their jjosition, the case
will be lUall with in accordance with the
OFFENCES HY OFFICIALS EXCESS OF ZEAL 15RIHKRY 487
circumstances (H. A. H. L. vol. XXXVIII.
pp. 17 — 20). So if an official is forgetful of
what is becoming a gentleman of his position
^ S t& ^ /Is ft ' or is absolutely ignorant
of the necessary amenities ^ 53^ '|^ ^P /liM ft •
Excess of zeal. — It is considered desirable
that officials should not betray too unseemly
an activity in the execution of their duties.
So a Customs officer who was somewhat
officious, was sentenced to one hundred blows
and a month's cangue (H. A. H. L. vol. X.
p. 51). Many examples of the kind are to be
found in the pages of the Peking Gazette.
Bribery. — Officials, whether civil or military,
who accept a bribe, be it for a lawful or
unlawful purpose, are liable to a penalty varying
according as the object was lawful or unlawful,
and graduated according to a fixed scale —
ranging from the infliction of a certain number
of blows of the bamboo to a capital penalty.
In addition to a penalty, loss of rank and
office is also entailed. It is considered bribery
within the meaning of the above, if an official,
although not bribed in the first instance.
488 MISCELLANEOUS ObbENCES — ENCROACHMENT ON THE SOIL
afterwards receives a sum by way of reward
for his conduct of a transaction.
An agreement to accept a bribe is one
detrree less serious an offence than actual
receipt thereof — but in no case entails a
capital penalty.
Impressment for private purposes. — An
officer who exercises magisterial functions, or a
superintendent of public works, who impresses
for his private objects those within his jurisdiction,
will be liable to a penalty of a certain number
of blows, varying with the number of those
employed.
So also of officials who compel private
persons to carry their sedan chairs.
MISCELLANEOUS OFFENCES
Encroachment on the soil. — To encroach
on the public highways "^ pT ft S! , roads,
squares, etc., is punishable with sixty blows
of the bamboo : the ground so encroached on
must furthermore be restored to its original
state, lo encroach on the roadway by erecting
a buttress to sujjport a wall subjects the offender
MISCELLANEOUS OFFENCES — DAMAGING RIVER FMKANKMKNTS ETC. 489
to sixty blows and one month's cangue (H.
A. H. L. vol. LX. p. 65).
Daiuaging rivej" embankments: cutting dykes
etc. — Distinction is herein drawn between
such damage to great rivers and the larger
waterways, and such damage to small rivers,
creeks, ponds, etc.
Further points arise from the fact of resulting
damage, loss of life, and the general effects
of the offence.
Where bodily injury or death results to
any person, the case is treated one degree
less severely than killing or wounding in
affray. Where a person cut a private dyke,
with the result that much property was injured
and fourteen lives lost, a penalty of three
months' cangue and military servitude for life
was adjudged (H. A. H. L. vol. LX. p. 61).
Intraviural intenucnt. — This is forbidden
in the Capital, and with so much particularity,
that to even convey a corpse through the
city is punishable. So a traveller merely
passing through, with the body of his deceased
spouse packed up in one of his boxes, was
490 MISCELLANEOUS OFFENCES TREASURE-TROVE
punished with one hundred blows (H. A. H. L.
Supp. vol. VII. p. 31).
Treasure-Trove. — The term seems to
have a wider signification than in English law,
and includes (with a few exceptions noticed infra)
all lost or abandoned property found in or upon
the earth.
In regard of property found by and on the
wayside the correct course is to deliver up the
find within a given time to the local magistrate.
If the property is public, it will be definitely
retained : if the property is private, it will be
retained for a specified time — and if the owner
appears within the period, half the property
will be returned to him, and half may be retained
by the finder. If the owner does not appear within
the given period, the property will go in toto to
the finder.
The above rules also apply to propert)- found
in the ground, with the exception of ancient
utensils, bells, official seals, and such like —
which must within a given period be delivered to
the Authorities [v. also H. A. H. L. vol. X. p. 57).
CHAPTER XV
OFFENCES AGAINST JUSTICE
SECTION I GENERAL CONSIDERATION
GENERAL CONSIDERATION
From one view, offences against Justice are
in China in their very essence offences against
the State. From the legal point of view, however,
the peculiar element in all these offences is
detriment (with a spice of rash contempt involved)
to the law per se^ and not to the State nor to
the Individual. Nevertheless it may easily happen
that an offence distinctly coming within this topic
may be ranged and punished under a clause of
greater stringency than at first sight applies —
so contempt of Court might conceivably be
considered treasonable or seditious. There is, in
492 GENEKAl, CONSIDERATION
fact, a good deal of strained construction in
connection with this portion of the law.
Offences against Justice, as tending to shake
confidence in the law are, on the whole, viewed
with a very natural jealous severity — "so as
"to give confidence in the law" Jil ^ iS iS
and "to make manifest its majesty" iSl 7K JU^ i^ •
The offences enumerated herein are mostly
familiar to an English reader in this connection,
with one striking exception — false accusation.
The last-mentioned offence (^. e-.) forms in many
respects a most important consideration, and if
the Chinese mode of treatment be somewhat
singular and rather involved, it is at least
remarkably comprehensive. Contempt of Court
and resisting arrest are other offences in this
connection exhibiting the constant desire to draw
distinctions.
CONTEMPT OF COURT 493
SECTION II — CONTEMPT OF COURT
CONTEMPT OF COURT
This is of two distinct varieties, including both
the contemning or disreg-ard of the orders of a
judge, styled ivei chih 3^ '^Ij , and the insulting
a judge's person, styled cJiia chih ^ "^Ij —
V. Jill however.
The former offence is comparatively trivial,
and is ordinarily punished with one hundred
blows; the latter offence is more heinous, and
is ordinarily visited with military servitude.
Such is the legal definition and explanation
thereof It is however more correct to consider
the definition of JS. ^'J as a general disregard
of authority , and many miscellaneous offences
are included under this head: — ^-g-^ to pawn a
commission (H. A. H. L. Supp. vol. IV. p. 13):
to trespass on the salt pans contrary to regulations
and in defiance of Imperial Proclamation — the
defiance entailing an addition to the ordinary
punishment (H. A. H. L. Supp. vol. IV. p. 3) :
to buy or sell paddy in Peking to an\one but
494
CONTEMPT OF COURT
th(^se livincr there (H. A. H. L. Supp. vol. IV.
p. 17): to cro to sea from any but a regular
port (H. A. H. L. Supp. vol. IV. p. 72): to
buy contraband (H. A. H. L. Supp. vol. IV.
p. 55): to shut the city gates (H. A. H. L.
Supp. vol. IV. p. 45) : to draw a petition of appeal
to the Throne (H. A. H. L. Supp. vol. IV.
p. 43): to sell tracts (H. A. H. L. Supp. vol.
IV. p. 38): to fail to destroy gambling apparatus,
dice, cards, etc., (H. A. H. L. Supp. vol. XIV.
p. 37): to make suggestions to an examiner
(H. A. H. L. Supp. vol. XIV. p. 38).
The other variety ^ %\\ applies not only to
an insult paid to the person of a judge in his
legal capacit)', but also to insults paid to the
person of those who are employed by or in
Courts of Justice and during the discharge of
their legal duties — in short insults paid to
anyone in whom the majesty of the Law may
be supposed in some measure to reside. The
offences under this head are marked by a far
greater similarity than is the case with that just
noticed, the general element of violence or
disturbance being present. So it is an offence
CONTEMPT OF COURT 495
under this topic to go in a body to a magistrate's
office, and noisily protest against any alteration
being made in the Revenue regulations , after
direction for revision has been made from the
Capital (H. A. H. L. Supp. vol. IV. p. 3). And
it is a more than ordinarily heinous offence to
go in a body to any public office of justice,
and create a disturbance therein, and strike an
official — the principal being immediately decapitated
and the accessories sentenced to strangulation
subject to revision, hi another instance a number
of official runners who howled and ran out of
a justice room, because one of their number
was flogged for not carrying out the judge's
orders, were sent to military servitude, and their
ringleader condemned to slavery in the New
Settlements (H. A. H. L. Supp. vol. XII. p. 29).
It was indeed even suggested that the ringleader
should be hanged, as it was a bad case —
the runners having been bribed to pass over
some doings of certain salt smugglers, and
getting up the row to frighten the magistrate.
Those who enjoy a high legal statics, it may
be added in this connection, will be treated
496 CONTEMPT OF COURT
with comparative tenderness for insulting the
person of the law : so a member of the Imperial
Clan who got drunk and tore a sheriff's coat
was not treated with the fullest rigour (H. A.
H. L. Supp. vol. X. p. 67) : and two similarly
fa\'oured mortals for pitching into an usher who
refused to allow them within the bar were
permitted to commute their sentences of military
servitude and transportation for imprisonment
(H. A. H. L. Supp. vol. X\l. p. 29).
It cannot be too clearly remembered that
contempt of Court is in Chinese Law viewed
ver)' broadly : neither of the varieties merely
apply to the law alone: either are equally
applicable to disregard or to an insult petty or
otherwise paid the bearer of an official position.
So rascals who enter an official office and insult
the officials or their officers tfi ft B A ^
Pi "^ "^J B ^ 1 or three or more persons who
band together and insult an official ^ ^ ^
H' , are guilt>' of ^ %\\ •
PERJURY 497
SECTION III — PERJURY — False accusation,
LIBEL AND SLANDER
PERJURY
This offence is divided into two cateofories :
(i) ordinary perjury in Court — which is usually
dealt with by the application of a leather slipper
to the perjurer's cheeks or by a prompt
bambooing, but of which there are also other
varieties more severely punished ; (2) bringing
a false accusation — an offence of some
magnitude, and dealt with in the next division.
Ordinary perjury in Court is not in Chinese
Law a statement on oath made before a Court
of competent jurisdiction in regard of a matter
relevant to the issue. Such false statements need
not be on oath, for an oath is not required in
a Chinese Court \ and furthermore the question
of relevancy to the issue is not so strictly
limited as in Engrlish Law — and statements
rather the outcome of a picturesque imagination,
and affecting points not relevant to the issue in
hand, are considered as perjury.
C, E. G. 32
498 PERJURY
Ordinary perjur)- in Court is apparently regarded
with considerable favour, or at least with some
tenderness. To merely make a false statement
in Court, if it be not adhered to, and no
consequences result, is punishable with but
one hundred blows (H. A. H. L. vol. XLVIII.
p. 36). The phrase for this form is ^ Sf ^ M'
which might be translated as 'stretching the
'imagination', 'drawing the long bow' etc. — but
more orthodoxly as the mere 'giving false
'evidence'. The penalty in this case, where reasons
for benevolent mitigation arise, is often allowed
to be commuted for fine. So in the case of
Wang Hsiao-shih J ^ U , convicted of ^ 9f
^ ^ , allowed to commute the bambooing for
a fine, and to present himself at the Examinations,
before he had even discharged his liability — on
the ground that he got into trouble through others
Another class of instances arises in cases where
a person desires to screen an offender. It is laid
down that in such cases the perjurer shall receive
two degrees less punishment than the offender
on whose behalf he has perjured himself (H. A.
PERJURY 499
H. L. Supp. vol. XIII. p. 42). Thus in the case
of Kao Chao l'^ B?v , a prison warder convicted
of giving false testimony g^ ^ with a view to
screening an offender guilty of homicide involving
capital punishment. The offence found was
deliberate perjury ^ ^ , and though this may
be said to have been an extreme case, yet the
ordinary above measure of punishment was
adjudged the perjurer.
A mother may apparently with some impunity
perjure herself for her offending son -^ f^ ^ fei
(H. A. H. L. vol. II. p. 43) : and it is considered
commendable to mve false evidence on behalf
of a husband or parents or an elder brother.
To commit perjury on behalf of an offender
for fee is considered a kind of petty treason.
To give false testimony to another's disadvantage
is considered as identical with brinCTinor a false
charge (^. d.) against him ^ 'S^ ifl |S^ S "m"
U M (H. A. H. L. Supp. vol. XVI. p. 30)
— and not as ordinary perjury in Court.
There is a curious mixed case of perjury and
forgery combined, which it seems not wholly
irrelevant to notice in this place — not perhaps
50p PERJURY — bALsE ACCUSATION, LIBEL AND SLANDER
SO much as illustrating any particular point herein
(though the case is indeed rather closely connected
with the foregoing), but more as indicating the
mode followed by a Chinese Court when in
doubt. The particulars were that certain persons
forged some deeds : the principal was sentenced
to death for causing the victim of the affair to
commit suicide : the accessories perjured themselves
over and over again in upholding the genuine
character of the documents, and were sentenced
to eighty blows under the well-known statute
allowing one hundred blows to be given anyone
who does what he ought not to do (v. case of
Jen Sheng-hsiao -fi IE ^ P. A. S. P. vol.
XXVII. p. 44). The fact was the Court was in
doubt as to what offence the accessories were
really guilty of — whether as accessory to forgery
simply, or to forgery aggravated by perjury; or
whether the offence was perjury simply, or
whether it was perjury aggravated by forgery.
FALSE ACCUSATION, LIBEL AND SLANDER
False accusation , as has been remarked in
the previous article , is a division of the offence
FALSE ACCUSATION, LIlJliL AND SLANDER JOI
of perjury — but being somewhat intricate and
decidedly peculiar needs special treatment. Within
the meaninof of the term is included a tangible
portion of that intangible part of Chinese law
— the Law of Libel and Slander. Law of
Libel and Slander in our sense there is not :
the mere perpetration of a libel or of slander is
not punishable criminally, but will become so
punishable if leading to some criminal act such
as suicide. From this view the law on the point
is part of the general law of responsibility, and
is considered in connection with the resulting
offence — this portion of the law is intangible,
and melts away into the substantive offence. Thus
to post up libellous placards regarding people
H ^ ^ lPf5 is not per se criminally punishable,
but if moving the parties to strife, a criminal
penalty may be inflicted icf. our view of a
criminal libel). The tangible portion of the law
is included herein \ for it is a criminal act to
bring a false charge against a fellow-creature ; and
the series of rules on the point distinguish with
infinite nicety between the degrees of gravity of
the charge itself, tlie consequences direct or
502 FALSE ACCUSATION, LIBEL AND SLANDER
indirect that have arisen out of it, the circumstances
under which it was made, and (in a less particular
manner) the character of the person charged,
and the animus of the offender.
False Accusation. — The law on the point
is as follows. ' Wu kao ^ ^ , to charge falsely,
'means to invent facts, and say that a person
'has become liable to a penalty' [to bring a
false accusation of malice aforethought is phrased
^^^ Wk ^\'- 'f<^n iso ^ ^ , to transfer sentence,
'is to sentence a false accuser to the penalty to
'which he falsely states the person accused has
'become liable.'
'The increased penalty awarded false accusers
'varies with the orravitN' of the accusation.'
'Whoever charges another falsely with a petty
'offence [i. e. an offence punishable with the
'light bamboo onl)) shall be sentenced to the
'penalty attaching thereto increased by two
'deprees.'
'Whoever charges another with a transportable
'offence or an offence punishable with the heavy
'bamboo or hard labour shall incur a penalty
'three degrees heavier than that applying to the
FALSE ACCUSATION, LIBEL AND SLANDER 503
'offence charged, whether sentence has been
'carried out or not, and so long that the penalty
'does not exceed one hundred blows and
'transportation to a distance of three thousand
Hi for three years.'
'If the false accusation involves the more
'severe degrees of transportation {i. e. for life
' with servitude on the frontiers or at the
or
'mines), or the commission of an abominable
'crime, the false accuser shall suffer death.' [As
— e.g. — of larceny, to falsely accuse an honest
person of robbery ^ ^ "^ ^).
'If the false accusation has involved sentence
'of death, but the sentence has not been executed,
'the false accuser shall be sentenced to one
'hundred blows and transportation for life to a
'distance of 3000 // and penal servitude for
'three years at the place of exile : and if the
'capital sentence has been executed, the false
'accuser shall be strangled or decapitated as
'the case may be, and half his property shall
'go to the family of the deceased.'
'If the person falsely accused with an offence
504 FALSE ACCUSATION, I.IHEL AND SLANDER
'involving hard labour has been already sent
'diereto, or where transportation being involved
'he has been already sent to his place of
'punishment, though the conviction be subsequently
'quashed and the person falsely accused has
'been set free, the false accuser shall be compelled
'to refund all expenses to which the accused
'has been put from the time he was brought
'before the Court to the day of his return home;
'and if the accused has mortgaged or sold his
'property, this will be considered part of his
'expenses, and recovered in like manner.'
'Should one of the family of the falsely
'accused die in consequence of the accusation,
'the false accuser shall be sentenced to death
'by strangulation — and besides compensation
'for the expenses incurred, half of his property
'shall go to the person falsely accused as
'provision for the family of the deceased.'
'WTiere from poverty a false accuser is
'unable to make compensation, he does not
'thereby become liable to any aggravation of
'the original penalty he has incurred.'
'If the falsely accused in his turn brings false
FALSE ACCUSATION, LIBEL AND SLANDER 505
'chargres agrainst his accuser, he will be held
'accountable for them, and the original offender
'merely sentenced to the simple penalty for the
'charge brought.'
'Where the person falsely accused tries to
'get his accuser into trouble, by falsely declaring
'the death of one of his (the accused's) family
'to have occurred when accompanying him to
'his place of banishment, or represents as a
'relative a person not belonging to his family
'but who has died while in his company — the
'falsely accused shall in that case become liable
'capitally, and the accuser shall merely suffer
'for the oriorinal charge without aa-gravation and
'without paying pecuniary compensation. Supposing
'the false accuser in such case to have been
'sentenced capitally, and the sentence to have
'been executed , the falsely accused shall be
'capitally convicted ; and where the sentence has
'not been executed, the falsely accused shall be
'sentenced to one hundred blows and transportation
'for life 3000 li distance. On the other hand,
'the penalty to which the false accuser had been
'sentenced shall be remitted, nor will he be
5o6 FALSE ACCUSATION, LIBEL AND SLANDER
'called upon to make compensation for the
'expenses incurred in consequence of the false
'accusation — for the reason that the false
'accusation brought against him is more serious
'than that of which he had been guilty.'
'The above all refers to ordinary cases where
'the accusation is utterly untrue.'
'Where two or more accusations are brought,
'the more serious of which are established,
'while the less grave charges are disproved ; or
'where the several charo-es broup-ht all involve
'the same punishment, and one be found true
'and the others false, no penalty attaches to
'the accuser. For as it is laid down in the
'general law, that if two counts be proved the
'prisoner shall be sentenced under the more
'serious and no notice shall be taken of the less
'serious, or if various counts proved be of the
'same gravity, the prisoner shall be sentenced
'upon one count only ; so in these cases of
'several charges, some false and some true —
'the falsity (3f some is not to affect the penalty
'due the others, and there is no excess of
'punishment to be transferred to the accuser.'
FALSE ACCUSATION, LIBEL AND SLANDER 507
'Where two or more charges are brought,
'the lesser of which are true, but the graver
'false, or where a charge is not true to its full
'extent (a charge being exaggerated), though in
'neither case is the accusation altogether false,
'still as the person accused becomes liable to a
'heavier penalty than he has justly incurred, the
'false accuser becomes liable to the difference
'between the penalty due and that adjudged.
'If the sentence of the accused has been carried
'out, the accuser will not be allowed to redeem
'the penalty to which he has become liable by
'payment of a fine, whether the penalty be
'simple chastisement or convict labour or
'transportation. If however the sentence has not
'been carried out , and the punishment be
'corporal, the accuser may redeem his liability
'by fine ; and in like manner if the sentence be
'convict labour or transportation, the accuser
'may redeem his liability in accordance with
'the scale of equivalents ; provided the penalty
'incurred does not exceed the equivalent of one
'hundred blows of the heavy bamboo — otherwise
'the one hundred blows shall be actually inflicted.
508 FALSE ACCUSATION, LIBEL AND SLANDER
'and redemption allowed only in regard of the
'further portion of the sentence.'
[So where the charge involved a penalty of
one hundred blows heavy bamboo and three
years' penal servitude to 3000 li distance, and
it appeared the accused was only justly liable
to one hundred blows heavy bamboo — the
transportation being taken as equal to four years'
penal servitude commutable in sum to two hundred
and forty blows heavy bamboo — the accuser
would be liable to one hundred and forty blows
heavy bamboo, the excess penalty of which —
one hundred blows — would be inflicted and
the remainder redeemed by fine. Or again where
the aggravation of the charge involved a penalty
of one hundred blows and three years' penal
servitude in place of eighty blows , the excess
penalty to which the accuser is liable is twenty
blows heavy bamboo and three years' penal
servitude •, and as in the five degrees of penal
servitude the hundred blows heavy bamboo are
commutable for forty, the full penalty to which
the accuser is liable is one hundred and twenty
blows heav\- bamboo — of which one hundred
FALSE ACCUSATION, LIBEL AND SLANDER 509
are to be inflicted, and the balance of twenty
redeemed by a fine].
'The reason for this discrimination is that the
'greater portion of a charge must be true
'where corporal punishment only follows, and
'the greater portion false, where the difference
'between the penalty incurred and the penalty
'justly due amounts to more than the equivalent
'of one hundred blows.'
'If the charge proved involve the punishment,
'no penalty will attach to the accuser for
'exaggeration — though considerable. So if a
'person accuse another of illegally exacting two
'hundred taels , whereas the latter has only
'exacted one hundred and thirty, no penalty
'attaches to the accuser ; as in all cases where
'an amount over one hundred and twenty taels
'is illegally exacted the penalty is the same —
'strangulation.'
'Where several persons are accused, the
'penalty for false accusation will still lie if one
'of them be shewn to be accused falsely — though
'the offence charged be comparatively small.
'So if three persons are accused, two rightly of
JIO FALSE ACCUSATION, LIBEL AND SLANDER
'grave offences punishable with penal servitude,
'the third wrongly of a petty offence, the accuser
'will be liable to two degrees heavier punishment
'than the innocent person would have incurred
'if proved guilty.' [And the gravity of the
offence herein varies according to the number
of those falsely accused — as where they be ten
or more ^ ~h A IJI Jl]-
'If a prisoner himself protest that a sentence,
'whether of bambooing or penal servitude, which he
'has undergone and which has justly been accorded
'him is unmerited, or that the magistrate and his
'assistants have been careless in their conduct
'of the case, he shall incur the penalty attaching
'to the charge of the proved case plzLS three
'degrees — so long that the penalty does not
'exceed one hundred blows and transportation
'for life to a distance of 3000 //. If the relations
'of the prisoner similarly protest, they shall be
'sentenced to the penalty adjudged the jDrisoner
'less three degrees — so long that the penalty
'does not exceed 100 blows heavy bamboo.'
'Where judicial officers, in their reports of
'cases tried by them , charge the persons
FALSE ACCUSATION, LIBEL AND SLANDER 51I
'reported on falsely, or where officers attached
'to the Censorate bring charges from private
'motives, and the charges prove false, the full
'penalty adjudged an ordinary false accuser shall
'attach in grave cases, and the penalty for
'dishonest action on the part of high officials —
H. e. one hundred blows and transportation for
'three years — shall attach in minor cases.'
[By 'minor case' is herein meant a case which
does not involve one hundred blows and three
years' transportation].
'Where the wild statements are made during
'a prisoner's term of penal servitude, the case
'is to be dealt with under the law relating to
'offences committed by convicts.'
A point to be noticed is that notwithstanding
the severe laws against false or coloured
accusations, it seems to be a rule for persons to
bring totally different charges to those to which
they are entitled — and as the plirase runs 'to
'put simple people in peril' thereby gl^ fe T^ A. •
So if complaining of abuse, a person will bring
512 BARRATRY ETC.
a charge of aggravated assault : if complaining
of common batter)-, a charge of attempted rape
will be substituted. Judging indeed from the
recorded cases, it is only by the current system
of cross-examination that truth can be elicited
— for there are always witnesses to testify in
support of the charges, whether they be true
in part, or altogether false.
SECTION IV BARRATRY ETC. ESCAPE
RESISTING ARREST
BARRATRY ETC.
To incite or promote litigation ^ J^ prI IS
is discouraged.
To draw up an information for another, and
make an intentional deviation from the truth
therein, involves the same punishment for the
assistant as for the false accuser — save in
capital cases, when the punishment for the
assistant is reducible a deoree.
O
ESCAPING FROM PLACE OF PUNISHMENT 513
Blackguards who make a practice of bringing
suits ^ ^ §^ fjjt; are commonly flogged.
[On the subject of Barratry and Maintenance
V. the interesting case of Lu Wen-ming f^ ^ ^
H. A. H. L. Supp. vol. IV. p. 54].
ESCAPING FROM PLACE OF PUNISHMENT
An offender who escapes from his prison cell
will incur a penalty two degrees more severe
than that attaching to his original offence. If
such an offender further release his fellow
prisoners , he will incur the penalty of the
most guilty thereof If prisoners rise collectively
against their jailers and forcibly escape, they will
all thereby become liable to capital punishment
— exception being made in favour of those
prisoners who were merely coerced into so rising.
In regard of transportation, a prisoner who
escapes from his place of punishment is, when
caught, to be flogged, cangued, and sent back
to the place he escaped from (H. A. H. L. vol.
XIV. p. 87). The amount of flogging herein varies
with the number of days absence — e. g. fifty
blows for the first day's absence, and one
C. E. G. 33
514
degree additional penalty for every additional three
days' absence, so far that the total penalty
does not exceed one hundred blows. A prisoner
guilty of a capital offence, who has been excused
the extreme penalty , because he had given
himself up, or because he had given his principal
up to justice, or because there were mitigating
circumstances in the case, is to be executed if
he escapes from his place of punishment {id.).
A prisoner who has escaped, will not, when
caught, be allowed to count the time that he
has already served, and his term will commence
anew from the date of his return to punishment
f5fliMill1^ilf:f^^ (H. A. H. L. vol.
III. p. 52): and if he escape while undergoing
a four years' term, his time ma}' be increased
to five years (H. A. H. L. vol. III. p. 53).
RESCUE
This is a grave offence punishable, under some
circumstances, capitally {v. H. A. H. L. Supp.
vol. V. p. 57) — indeed, under the old law,
the penalt)' was decapitation for all concerned.
In the first place, distinction must be drawn
515
between an offender already committed to custody
by the Court f^ (Zj — to rescue such a prisoner
being phrased ^ [ZI — and a mere prisoner
charged with an offence, but who has not yet
appeared before a magistrate fp \_ ■
In the next place, distinction is drawn according
to the number of those enofagfed in the rescue
or attempted rescue. And first of a rescue by an
individual or by a band less than ten in number.
To join in the rescue of a prisoner upon the
high road is punishable by one hundred blows
and transportation 3000 // distance : and if, in
the course of the rescue, the police are injured,
the sentence will be strangulation subject to
revision. If the band be more than ten in
number, the principal will be liable to decapitation
subject to revision, and the accomplices to the
next degree of punishment set forth in the statute.
Further by an edict of the 7''^ year of Yung
Cheng, if anyone is killed in these cases, the
principal — as organiser of the rescue — is
liable to immediate decapitation, the striker of
the fatal blow to immediate strangulation, and
the other parties to lesser penalties. The edict
5l6 RESISTING ARREST
points out that distinction must be made between
an organised and a chance rescue.
Additional questions arise by reason of the
position of the rescuer. So in relationship, where
more than one of a family are engaged in the
rescue, the responsibility lies with the senior :
but not if the junior planned the affair, and the
relative — say an elder brother — interfered at the
request of his junior. So again of master and
servant. For a servant to simply follow his
master by the latter 's orders is excusable ; but
if the servant tries to hurt anyone, or takes any
active part in the rescue, he cannot plead his
lord's commands.
RESISTING ARREST ^^E tS
The subject has in a measure already been
dealt with incidentally, but a few points need
attention in this place.
Distinction is drawn between resisting a peace
officer and an ordinary person , and other
distinctions are drawn in regard of the latter
{infra). This first distinction is often dependent
upon a second — had the person who resisted
RESISTING ARREST 517
actually committed an offence ? and if he had —
what was the nature thereof?
In regard of the first distinction, it is to be
noted that ordinary persons are divisible into
three categories : — i. e. those directly concerned
or interested in the arrest, relatives of the person
interested in the arrest, mere neighbours or
strangers. It by no means follows that it is
more serious to resist a peace officer than to
resist an ordinary person {infra).
In respect of the second distinction, a person
who resists arrest, but is satisfactorily proved
not to have committed the offence for which he
was arrested, will generally be excused, but
may be bambooed — the number of strokes
varying according to the position of the person
he resisted. If injury be inflicted upon the
arrester, the penalty may be increased to
transportation ; or if serious injury or death, to
a capital sentence — the penalty likewise
varying with the position of the person hurt.
Indeed in the event of killing or wounding the
case may apparently be treated as killing or
wounding in aftVay. It must furthermore be
5i8
RESISTING ARREST
understood in regard of this second distinction,
that the arrester must have and show good
cause for his action before the law hereon
applies.
A person who resists arrest and has committed
an offence will be treated seriously according to
the nature of the offence committed, the position
of the person resisted, and the injury (if any)
done. In ordinary cases, the penalty due the
original offence committed is aggravated two
degrees — in so far that such increase of
penalty shall not apply to capital cases, nor
make those cases capital which less the increase
would not be so. Accessories incur one degree
less punishment than the principal.
It is important to notice the influence of the
consideration of the position of the person who
is resisted, and illustrations taken from larceny
may serve as practical examples both of this
particular point, and incidentally of other of the
considerations above mentioned. So in ordinary
robbery — with the exception of cases where
the robbers kill or wound in the course of
trying to effect their robbery, when no difference
RESISTING ARREST 519
is made (cf. infra) — a distinction is drawn between
cases in which the owner of the property is killed
or wounded in pursuit of the robbers or during
an attempt to recover the plunder, and cases
where the person killed or wounded was a
neighbour or a stranger. The owner of the
property is specially protected by statute, while
the offence in the other cases is treated as one
of ordinary killing or wounding with penalty
increased by two degrees. No distinction is
made in cases of robbery with violence between
the owner of the property and his neighbours
or strangers, if anyone is killed — simply in
view of the gravity of the case : but in cases
of mere Jmrt^ the owner of the property is an
injured person, while the neighbours or strangers
are simply persons having a right to interfere
(if they like) — and they cannot therefore be
considered in the same light {v. also p. 421).
It has been said that it may be more serious
to resist an ordinary person than to resist a
peace officer. This also not infrequently happens
in larceny : so it is a graver matter for an
offender to stab the person he has robbed
520 RESISTING ARREST
when the latter tries to seize him, than to put
his knife into a policeman who tries to take
him into custody : in the former case it is
death — in the latter merely an aggravation
of the original offence : for they quaintly say a
policeman knows what to expect and goes
prepared ^- whereas the man who has been
robbed, in the hurry of the moment, goes
unarmed to capture an armed ruffian. But here
also if the policeman be killed., the capital
penalty is extreme and distinctions no longer
prevail.
CHAPTER XVI
RELIGION AND OFFENCES AGAINST
RELIGION
SECTION I GENERAL CONSIDERATION
GENERAL CONSIDERATION
There are three recognized persuasions in
China, Confucianism, Buddhism, and Taoism —
and to these may now be added Christianity
and Mahommedanism. Further there is the State
Ritual {infra). In view of certain misconceptions
likely to arise in connection with this portion
of the Law, it seems desirable to briefly sketch
the position of the first three persuasions and
the State Ritual inter se, together with the
manner in which the State regards them, and
further to indicate the way in which the State
has viewed the introduction of other tenets, and
522 GENERAL CONSIDERATION
the mode of legal discipline adopted therefor.
Of the three recognised persuasions,
Confucianism holds the paramount position. It is
upon this philosophical Code that much of the
prevailing system of legislation has been based
— the effect of the lapse of centuries having
merely been to add, if possible, to the cogency
of certain of the tenets. The other two
persuasions , Buddhism and Taoism , do not
receive such mental favour — and are indeed
tolerated only so far that they do not impinge
upon the domain of Confucianism.
Neither of the three above-mentioned forms
of religion can be said to be 'by law established'
— thouofh incidental references to all three
appear both in the Code and the Supplementary
Laws. There is a ritual, however, to which
these words may (but in a measure only) be
applied. This is the State Ritual — a ceremonial
concerning officials only and especially the Head
of the State. The procedure consists in the
worship of heaven and earth, the sun and
moon , and certain natural objects ; officials
alone take ])art in the various exercises, and
GENERAL CONSIDERATION 523
the ordinary people have no share wliatever
therein. Many provisions in regulation of the
Ritual appear both in the Code and the
Supplementary Laws — and penalties are, upon
the whole, heavy. It should also be added that
the law on the point is extremely closely
construed, and further that no part of the
system is so little subject to legislative alteration.
In addition to Confucianism, Buddhism, and
Taoism, it has been the custom for a considerable
period to extend toleration to other creeds also;
and material alteration has, within the last thirty
years, been made in the law to the necessary
effect — the result in general of pressure from
without.
The manner in which the Chinese Government
has usually regarded religious creeds cannot be
expressed more aptly than in the words of a
well-known writer who states that 'the Government
'tolerates no denomination suspected of interfering
'with its own influence.' This is the key to the
law upon the point, showing why the introduction of
certain foreign tenets has been from time to
time deemed heretical, and the reason for legal
5^4
GENERAL CONSIDERATION
discipline. It may indeed be said that the
breach of any particular doctrine per se is not
legally punishable — what is feared is the
introduction of poisonous seed.
It may be pointed out that in regard of the
propagation of Roman Catholicism and other
tenets, the objections raised thereto at different
times have not been trivial or without the Law,
but, on the contrary, have been based on strictly
legal principles and rules. Of cases where
specific religious clauses or laws upon the face
of them applied, and have been applied, there
s no need to speak. But where no provision
exactly applied, and yet it has been sought to
enforce legal discipline — the case is not so
clear. The modtis has however been to bring
(without straining the meaning)^ the offence
under some other clause — as e. g.^ sedition,
ancestral worship , treason. So of Roman
Catholicism ; the 'immuring of young girls in
'nunneries' is neither more nor less than the
offence of kidnapping children ; 'paying no worship
'to the dead' is a direct violation of the legal
provisions touching ancestral worship; the 'confusion
GENERAL CONSIDERATION 525
'of class distinctions' is a form of sedition ; and
lastly and particularly , the 'subtraction of a
'large number of subjects from the allegiance
'due their Sovereiofn' is a form of hio-h treason.
Edicts have also been published from time to
time making the printing of religious books and
the preaching of the Gospel capital offences.
But this is not extra-legal rigour; it is a
perfectly legal measure — in the common phrase,
'to suit the exigencies of a particular case.'
Much ridicule has been at various times directed
on the apparent trivialities urged as 'reasons' in
Imperial decrees — upon such phrases, for
instance, as 'distribution of foreign books calculated
'to seduce men with lies', etc. The reason is
based upon legal objections however, and the
mode of enactment is equally in accordance
with the law. Where — to give an example —
would be the ridicule , if Chinese priests in
direct infraction of Acts of Parliament should
wander throuofh Eng-land and distribute tracts.
The law touching religious offences J>er se
(excepting the numerous provisions concerning
the Ritual) is, as the reader will have gathered,
526
relatively rather scanty — offences in connection
with religious observances being often treated
under some other clause. There are however
certain laws of great importance touching heresy,
irregular procedure (including ritual), sacrilege,
offences by priests, and, in especial, the treatment
of the dead — the law on this last ' point
flowing- from convictions of the most universal
and deep-seated nature.
SECTION II HERESY IRREGULAR PROCEDURE ETC.
SACRILEGE
HERESY
The offence of heresy is regarded as grave,
and may be punished capitally. The rules drawn
up in its regard bore special relation to certain
indigenous practices, and when fresh doctrines,
as Christianity, were imported from abroad, a
new and more rigorous treatment was adopted
therefor and incorporated in the system — now
however not sfi-ictly in operation.
CHRISTIANITY 527
As regards the more ancient law, a good
example of a not uncommon offence is the
worship of certain unorthodox idols. So in the
case of Ho T'ien-lin $'P'^ ft, an offender
who carried in procession the image of the ^
^ -^ "f^ or Unborn Mother was sentenced to
penal servitude on the frontiers. The image in
question was said to be unorthodox ^P ^ jjjj
^ , and to carry it in procession against the
law (H. A. H. L. Supp. vol. IV. p. 29).
So again of alleged magicians, sectarians, and
teachers of false doctrines (for all such offenders
are dealt with under one head), the possession
and concealment of their images of worship, the
burning of incense thereto, and the assembling of
their followers for the sake of instruction, entails
in each case strangulation for the principal, and
one hundred blows and permanent transportation
to 3000 It distance for the accessories.
An official who commemorates or performs
sacred rites to the honour of any unorthodox
spirit etc. incurs a penalty of eighty blows.
Christianity. — It is somewhat strange that
various writers have stated that there was never
528 HERESY — CHRISTIANITY
any reference to Christianity in the Code, forgetful
of the provisions for punishing those who became
converts to that faith — provisions not expunged
until after the Tientsin massacre in 1870 {v.
Introchcdioii). Offenders were investigated before
a magistrate and then required to make a
recantation in form. This recantation at first
consisted in stepping over a wooden cross; but
the Roman Catholic priests seem to have freely
allowed their converts to do this, as the crosses
used for the purpose had not been consecrated.
In the 1 8^'i year of Tao Kuang an edict accordingly
provided that a convert, if he expressed himself
as willing to recant, might prove his sincerity
by trampling on the Crucifix he had been in
the habit of adoring (H. A. H. L. vol. XXXII).
Previous to this edict , also , an offender who
had recanted and again relapsed would not be
capitally treated but allowed one more opportunity ;
though the relapse would of course be visited
with punishment in severe form — as in a
case where two members of the Blood Royal,
for adoring the Crucifix and practising the
Christian religion after having been once pardoned
IRREGULAR PROCEDURE: OBSERVANCE OF RITUAL 529
for doing- so and duly recanting, were sentenced
to penal servitude in Hi and to lose the privileges
of their order — (His hnperial Majesty directing
the names to be removed from the register).
By the edict mentioned no such second opportunity
was to be criven.
o
IRREGULAR PROCEDURE : OBSERVANCE OF RITUAL
Many and varied offences occur under this
head, and but one or two examples are herein
given. The gist of such an offence is not the
infraction of any orthodox religious creed, but
the commission of an act contrar)- to religious
procedure likely to set a bad example to others.
A man may practise certain devotions, but it is
not desirable that he should have extreme
license in this respect. A man may entertain
perfectly orthodox convictions , may zealously
entertain and desire to put them into practice ;
it is just of this latter point that he must beware —
fanatics are dangerous to the State. There are
thus in effect two chief categories of offences under
this head ; the one a stealthy and subtle source
of danger, the other open but equally dangerous,
c. E. G. 34
530 IRREGULAR PROCEDURE: OHSERVANCE OF RITUAT,
So of private practice of certain religious forms.
Privately practising incantations will subject the
offender to transportation for life at least, and
possibly to a capital penalty. Thus in the case of
Hsii Wei f^ f^ , the offender tried an incantation
for a case of small-pox, and finding that it did
not answer, stopped short. For this the penalty
of transportation for life was adjudged ; had the
offender persevered, he would, it appeared, have
been sentenced to capital punishment (H. A. H.
L. Supp. vol. IV. p. 30).
And aofain of irreofular demonstration of
convictions. Pilgrimages, under an edict of the
1 4^1^ year of Tao Kuang, are discouraged, as tending
to disorder — and the persons getting them up
are to be arrested and severely punished (H.
A. H. L. Supp. vol. IV. p. 27). So again where
persons ornament idols, and accompanying them
tumultuously with drums and gongs, perform
oblations and other sacred rites to their honour
— the principal herein incurring a penalty of
one hundred blows.
The Salvation Army would come to grief in
China. So in the case of Li Tso-lai ^ ^ ^^
IRREGULAR PROCEDURE: OBSERVANCE OF RITUAL 53 1
who finding- the zeal of the faithful waxing
weak , started a salvation army to go out
among the people and proclaim the approaching
day of the Lord. There was nothing unorthodox
in the doctrines preached, but as the scheme
gathered people together and was calculated to
unsettle their minds, the offender was excused
the capital penalty of spreading heresy, but
sentenced to transportation for life 3000 li
distance (H. A. H. L. Supp. vol. IV. p. 29).
Officials concerned therein incur certain liabilities
in regard of the due observance of ritual. So
as regards the Imperial sacrifices, the officials
concerned therein must prepare themselves by
abstinence, and take vows therefor, and previous
thereto must make due announcement of the
intended sacrifices. Failure to comply with the
regulation as to notice entails a penalty of fifty
blows : and if in consequence thereof the proceedings
are irregular the punishment will be increased to
one hundred blows. If an official violates his
oath of abstinence he will forfeit one month's
salary. If the animals, silks, grain etc., for the
sacrifices are not according to the state or quality
532
SACRILEGE
prescribed by ritual, the official responsible therefor
will incur one hundred blows.
The various provincial officials are furthermore
responsible for the due erection of monuments
to the local and standard deities, and for the
due worship of such.
SACRILEGE
This is heavily punishable, usually without
any regard to any extraneous considerations. So
for instance in robbery from a temple, no particular
attention is paid to the value of the plunder —
e. g. to scoop out and carry off valuables from
the interior of an idol, larceny of the brass
headed nails from a temple door, etc., etc., are
equally punishable by immediate decapitation.
The theft of the consecrated Imperial oblations,
or of any of the sacred utensils, cloths etc., used
during the Imperial sacrifices entails decapitation
for all concerned. Where the oblations, utensils
etc., had not been offered up or consecrated, or
where the oblations, utensils etc., had ceased to
be used for sacred purposes, theft thereof will entail
one hundred blows and transportation for three
OFFENCES nv PRIESTS 533
years. To discard or destroy utensils consecrated
to the service of the Imperial rites also entails
a similar penalty to the foregoing. To destn^y
or damage, whether intentionally or accidentally,
altars or mounds consecrated to sacred rites
entails transportation for life 2000 li distance.
To destroy or damage, whether intentionally or
accidentally, the gateway to such ground entails
ninety blows and transportation for two years.
SECTION III — OFFENCES BY I'RIESTS — (JFFENCES
AGAINST THE DEAD
OFFENCES BY PRIESTS
Priests are directed to be treated with exceptional
severity — bound as they are to lead a godly
life. So in the case of Wu Ming '|^ ^ , who,
in the course of a fight over a quarrel regarding
property he had, stabbed two of his fellow
priests — and the wound of one gangrening,
the consequences were eventually fatal. As the
534 OFFENCES AGAINST THE DEAD — POST-MORTEMS
death occurred within ten days of the expiry of
the thirty days' limit, the offender was recommended
to mercy; and the Board had indeed in ordinary
course commuted his sentence to penal servitude
for life ; but a special decree not only disapproved
of the commutation , but directed that at the
Autumnal Revision the name of the offender
should be entered on the list of the really guilty
(P. A. S. P. vol. XIX. p. 25). So again in
the case of Chieh An -??- ^, where a priest
got drunk and beat to death his deacon aged
eleven. For this the penalty of decapitation
subject to the Autumn Revision was adjudged,
but an official decree ordered immediate execution
(P. A. S. P. vol. XIX. p. 47).
And of other offences with like severity (v.
also Relationship — Master and Pttpil).
OFFENCES AGAINST THE DEAD
Post-mortems . — These are not permissible ;
as in the case of Chang Lieh ^M ^A 1 sentenced
to a year's penal servitude and sixty blows for
liolding a post-mortem on his deceased wife (H,
A. H. L. Supp. vol. VII. p. 30).
OFFENCES AGAINST THE DEAD — MAKING AWAY WITH COKl'SES 535
Making away with corpses. — To deliberately
throw a dead body into a river, or burn it, or
throw it to the dogs, to deprive it of burial, is
transportation for life — the penalty being
reduced somewhat if the body is recovered. It
would seem, however, that there must be an
intention to deprive the corpse of proper burial,
or aggravating circumstances, for the law to be
carried out. Nor is the owner of a field or
court-yard justified in removing a corpse which
he finds therein , before he has informed the
Authorities, under penalty of eighty blows ; or
if the body is lost thereby, of one hundred
blows — the penalty being increased to sixty
blows and one year's transportation, if through
the act of the owner of the field or court-yard
the body is by some body else thrown into a river
(H. A. H. L. vol. XXI. p. i). And if the owner
of the field or court-yard throws the body into
a river himself, he will be liable to transportation
for life — although his object was only to avoid
getting into trouble (as in the cases of Ho Ching-
sheng ^ ^ ^ and K'ou Wen-yu ^ X ^
H. A. H. L. vol. XXI. pp. 1 — 2).
53^^ OFFENCES AGAINST THE DEAD — DESECRATION OF COFFINS ETC.
Where a man is killed justifiably, and the
slayer hides the body, the case will be treated
as merely removing a body which the slayer
has found on his premises — provided the
hidine be not done in ano-er and with intent to
deprive the corpse of burial. And an accomplice
in an offence involving a capital sentence, who
was convicted of burying a dead body to destroy
evidence of the offender, was punished under a
special statute by transportation for three years
instead of for life (H. A. H. L. vol. XXI. p. 5) —
but not so if the offence was capital {id.).
To make away with the corpse of a relation
is an aggravated offence or otherwise according
to the degree of relationship existing.
Desecration of coffins, graves^ and cemeteries. —
The offences under this head are numerous
in number, and are distinguished with much
exactness cjf definition. Thus there is the digging
in and breaking up another person's cemetery
— with additional points as to rendering a
coffin visible, opening a coffin, exposing the
corpse etc. etc. Then there are the offences of
breaking open an unburied coffin, destroying,
OFFENCES AGAINST THE DEAD DESECRATION OF COFFINS ETC. 537
mutilating-, or casting away, an unburied corpse.
Furthermore relationship, as is natural, is a very-
potent consideration ; and this whether the relation
be natural or artificial — as, e. g.^ master and
servant. On some of the considerations in this
rather gruesome subject in their order.
A coffin may not be opened after it has
once been closed : so in the case of Yao Te-mao
^^li S S 1 who was condemned for ordering
his daughter-in-law's coffin to be opened to take
out a silk mattress improperly placed therein :
as a father-in-law, the offender was punished with
a mitigated penalty, but the persons who acted
under his orders were punished as accessories
with the full rigour of the law (H. A. H. L.
vol. XXI. p. 13). Again in the case of Lin
K'o ^ ^^ , it was laid down that to open the
coffin of a sister-in-law is a capital offence,
whether she be the wife of an elder or a younger
brother — for a sister-in-law is a connection,
not a relation [id?) ; seats however in regard of
a niece-in-law, where the benefit of relationship
may in such case be claimed (H A. H. L. vol.
XXI. p. 17).
538 OFFENCES AGAINST THE DEAD DESECRA TION OF COFFINS ETC.
To constitute the offence of breaking open a
coffin, it would appear that there must be actual
breakage — forcing the lid open sufficiently to
get a hand in is not breaking f II ih ft K t§
* ^^ lilj It s s « M # S iS flS ^ *
m^Mum^f^nmn (h. a. h. l.
vol. XX. p. 54) : and to constitute what is termed
seeing the corpse ^ J^ , the body must be exposed
The desecration of graves and cemeteries is visited
with great rigour. In the case of the Imperial
tombs the penalty is lingering death ; and in
slightly less degree only as regards the tombs
of worthies ancient or modern ; and to break
open a tomb even of the lowest and meanest
and expose the corpse to view is a capital
offence so far as the principal is concerned —
though ordinarily commuted to five years'
transportation. The points to be considered in
these offences are, firstly the motives of the
desecration, and secondly the relationship of the
deceased to the desecrator. An ancestor's corpse
to tlic time of the flood is sacred , and to
OFFENCES AGAINST THE DEAD — DESECRATION OK COFFINS ETC. 539
break an ancestor's bones by carelessness, is
the same as to inflict the same injury upon
them living-. In this connection, to turn an
ancestral cemetery into a wheatfield entails
Siberia (H. A. H. L. vol. XXI. p. 34).
The penalty under exceptional conditions is
light however — as where a coffin surreptitiously
deposited in a family vault or in family ground
is removed by the family in point, when but
eighty blows will be awarded the principal : but
Tseng Kuang-lieh "g* 7U ^l] ' fof digging up a
coffin buried ten feet from his lot was sentenced
to military servitude — the coffin being placed
in ground bought for the purpose (H. A. H.
L. vol. XXI. p. 33): and Liu T'ing-ying ^J
^ ^ was held not to be justified in objecting
to the burial and removing the coffin of Hsieh
Te-ch'eng llj" j^^ wC ^rid his wife — although
the ground was public common (H. A. H. L.
vol. XXI. p. 32).
It is no orreat excuse that an old barrow
o
was opened merely in pursuit of archaeology —
this latter study is not much thought of in
China : if the student knew coffins were in
540 oKl'ENCES AGAINST THE DEAD — DESECRATING ANCESTRAL TABLETS
the old barrow, he would be sentenced to
transportation for three years, and if he did not,
to penal servitude for a short space (H. A. H.
L. Supp. vol. VII. p. 33).
Desecrating ancestral tablets. — This applies
chiefly to the tablets of ancestors of the desecrator,
though to destroy or otherwise desecrate of
malice aforethought the tablets of other person's
ancestors is also heavily punishable. To destroy
the ancestral tablet of his ancestor renders
the desecrator liable to decapitation : and for
accidentally smashing a tablet while he was in
liquor, Ch'u Yang Shih Ying [^ [^ fH" ^
was sentenced to one hundred blows and
transportation for life to a distance of 3000 li.
It should be noted that offences in this regard
are among the most heinous known to the law.
Cremation J^ % t% ^^ — This is contrary
to law, though among the Miaotzil it would
seem to be customary (H. A. H. L. Supp.
vol. VII. p. 32). The principle herein acted on
is that a good spirit needs no cooking, and that
if the process be adopted, no spirit will be left.
CHAPTER XVII
COMMERCE AND OFFENCES AGAINST
COMMERCE
SECTION I GENERAL CONSIDERATION
GENERAL CONSIDERATION
The provisions of the Code relating to
Mercantile Law are singularly few in number
and narrow in range, and the published cases
on the point are not very numerous. The
explanation generally speaking is that, as occasion
arises, provisions in regulation of trade are laid
down and promulgated at the mart they more
particularly concern. It has been considered
judicious to pay special regard to special
circumstances ; and with that ' end in view the
local Authorities are, generally speaking, given
542 GENERAL CONSIDERATION
ample powers. Naturally certain general principles
apply, but in addition a certain special latitude
has been allowed.
The Chinese have a different understandino-
of the words Free Trade to our own. A
paternal Government has laid down the course
to be pursued, trade is invariably taxed, and
every transaction has to be carried on through
licensed agents. The merchant pure and simple,
or the person who ventures ^ j^ , have both
equally to buy their goods through the established
factors, settle the freight for shipment of the
goods through the licensed brokers, and sell
the goods when they arrive at their destination
through the regular dealers. On the other hand,
while the trader fulfils these legal requirements,
and pays his duties, he is protected from what
the law considers unfair competition (v. infra —
Trade Combinations &c.) — and the net gain
to the Chinese trader is considerable.
Though the conduct of trade has been placed
under strict discipline, it has not, however, been
unnecessarily fettered — and accordingly Chinese
traders, upon the whole, follow the prescribed
GENERAL CONSIDERATION 543
course of the law. At certain marts, at certain
times , and with certain articles of commerce ,
malpractices are common enough : then bribery
is attempted to hush the matter up : and when
this latter has in turn been exposed, the usual
portentous notifications appear — with, it must
be admitted, some effect. On the whole, commerce
in China is facilitated and secured to a very fair
degree : but the prevalent standard of commercial
responsibility and honesty is perhaps more
efficacious than le^al force.
The considerations dealt with in this connection
probably more constantly vary than any other
portion of the law , and frequent and close
perusal of the numberless local regulations is
absolutely necessary to obtain a true knowledge
of the legal mercantile conditions prevailing at
any given time and mart.
544 LICENSED BROKERS COMMISSION AGENTS SHIP-BROKERS
SECTION II LICENSED BROKERS ETC. TRADE
COMBINATIONS ETC. OTHER INTERFERENCES
WITH TRADE — COMMERCIAL GAMBLING
LICENSED BROKERS COMMISSION AGENTS
SfflP-BROKERS
Licensed brokers ^ ^ , commission agents
^ ^ , and ship-brokers )^ ^ *]^ fl^ , are
established at the various marts, and various
laws have been made to prevent them abusing
their privileges. These brokers or agents are
to be selected from among individuals of
wealth and standing : they are required to
keep certain official registers of the various
vessels or merchants that may arrive, and also
full records of all merchandise imported. The
various records are subject to inspection every
month at the local magistracy. Among the
onerous duties attaching to the position of a
licensed ag-ent are those reeardine the fair
valuation of merchandise and assessment of fines
to which an offender may have become liable.
Any error in valuation, whether in excess or in
diminution of the proper sum, entails upon the
TRADE COMBINATIONS CORNERS 545
agent a proportionate penalty for embezzlement :
if the aeent convert such difference to his own
advantage , a proportionate penalty for theft
attaches. Any error in assessment of fines or
forfeitures entails on the agent the penalty
attaching to an official who gives a wrong
judicial decision. Brokers are not allowed to
demand exorbitant commission and retain the
proceeds of the property confided to them for
sale until they are paid what they ask ^ ^T
{v. case of Chang Ta-chi 56 3^ § H. A. H. L.
Supp. vol. IV. p. 1 5).
TRADE COMBINATIONS CORNERS
Arrangements to artificially influence the market
are contrary to law. For a person to unduly
depress or raise prices to suit his own convenience
entails a penalty of eighty blows ; and undue
profit arising therefrom will be treated as theft.
Trade Combmatio7is. — Our railway directors
and shipping agents would be in gaol in a very
short time, if they ventured on their ordinary
practices in China, under the clause 3fe I'M S
C. E. G. 35
546 OTHER INTERFERENCES WITH THE COURSE OF TRADE
the law against 'ruffians establishing conferences
'and preventing shippers chartering outside
vessels'; and the oriofinator of the combination to
raise sales would be sent to military servitude
on the borders after a month's cangue, while
those who combined with them would get one
hundred blows and three years' transportation.
So in the case of Chang Hao ^ '^ and
others, where some licensed shipping agents and
others who combined to raise the rates on a
demand for transport arising were so sentenced
(H. A. H. L. Supp. vol. IV. p. 15).
Cornells. — Forbidden. So in the case of a
corner in bread stuffs denounced by special edict
from the Throne ; and the Governor- General of
the province wherein the case arose was directed
to enquire into these practices and punish the
offenders S ^ f F if 1 ^ 1 S M M ^B
flJllS (H. A. H. L. Supp. vol. IV. p. 21).
OTHER INTERFERENCES WITH THE COURSE OF TRADE
Strikes ^ ^^^. — It is decapitation to
agitate against the repair of the bunds or
COMMERCIAL GAMBLING 547
embankments, if there be pressing necessity therefor,
and so agitating keeps people from coming
forward : and, as in the case of Li Chia-shen
^ ^ ^ , if a person simply agitate against
ordinary repairs, he will be transported for life
(H. A. H. L. vol. LX. p. 62).
Strikes are not often risked.
Levying Tolls. — This, if done unauthorisedly,
is held an interference with trade (H. A. H. L.
vol. X. p. 49).
COMMERCIAL GAMBLING
Generally and strictly forbidden. So gambling
transactions in grain are severely dealt with,
especially by an edict of the 12^'^ and is'^^^ years
of Tao Kuanpf with reference to the establishment
of corn exchanges, at which certain firms bought
and sold for the account ^ S M S 1 P^icl
differences M g ff f i ft ffi tS §1 , and fixed
dates for settlement, etc. (H. A. H. L. Supp.
vol. IV. pp. 21 — 22).
548 MINING LAWS — COPYRIGHT
SECTION in — MINING LAWS — COPYRIGHT — WEIGHTS
AND MEASURES — MISCELLANEOUS
MINING LAWS
It is not permissible to prospect for gold
without license, but the offence varies with the
locality. In the New Territories the punishment
is military servitude, in China Proper merely
canguing and bambooing. Special edicts prohibiting
gold washing fgij vS ^ '^ in certain districts,
as at Ta T'ung Hsien ^Ac fi IS i" Shansi,
usually fix a penalty something between the
two (H. A. H. L. Supp. vol. VI. p. 29).
Distinction is drawn in regard of the penalty
as to whether any gold has been obtained or
not {id).
Other mining is on much the same footing,
but the penalty seems to vary according as the
metal is less or more precious than gold.
COPYRIGHT
This exists chiefly in respect of official
publications. So in the case of Li San ^ ^ ,
sentenced to one hundred blows heavy bamboo
WEIGHTS AND MEASURES MISCELLANEOUS 549
for printing an edition of the official calendar
without license: the compositors, printers etc.,
who assisted the offender were sentenced to
forty blows of the light bamboo.
WEIGHTS AND MEASURES
These must be conformable to standard and
be issued under Government sanction. To make
false weights and measures, to procure such, or
to tamper with the duly issued standards, are
equally punishable with sixty blows. Measures,
no matter how correct, which have not been
officially examined and sealed, may not be employed
— under penalty of forty blows.
Officials connected with the duty of issuing
standard weights and measures naturally incur
special liabilities thereby : so if any measures not
made according to the established rules are issued
under the sanction of Government, the official
who issued the measures, and the artificers
thereof, are liable to a penalty of seventy blows.
MISCELLANEOUS
Illicitly quitting the country. — This is
550 USURY AND DEBT
regarded as an offence against trade, inasmuch
as the chief object which ordinarily induces a
person to leave his country is the desire to
make money by trade. The offence is nominally
most heavily punishable — decapitation both
for the offender and the officials concerned.
The offence is however in practice much less
heavily punishable now than hitherto : so in
a well-known case where a Cantonese convicted
of shipping on board a foreign vessel
was sentenced to one hundred blows and
transportation for life 3000 // distance , under
the clause against going beyond the Great Wall
without a passport ftE ® f^ |Jj p ^[» f^) _
cf. our ne exeat regno.
SECTION IV — USURY AND DEliT
USURY AND DEBT
The rate of interest fixed on a loan of money
or property of value is three per cent per month.
For a money lender to demand m(3re than this
USURY AND DEBT 55 I
very liberal rate is subject to a penalty of forty
blows — but in no case to exceed one hundred
blows. The law on the point is nevertheless
frequently transgressed, and the rates of interest
current vary much in different parts of the
Empire.
The case of Chin Sheng-chang ^ W ^ gives
an insight into the procedure for the recovery
of debt. The course appears to be to present
a petition to the necessary effect to the magistrate,
who thereon furnishes a bailiff with a warrant
to collect the money. Armed with this warrant,
the bailiff arrests the debtor, and keeps him in
custody until the debt is paid — or if there be
delay in the payment, and with a view to
expediting it, takes the debtor from time to time
to the magistrate to receive a certain amount
of castigation (P. A. S. P. vol. XX. p. 21).
It is not permissible for a creditor to chain
his debtor up on his own account, and if the
debtor dies of starvation in consequence, the
creditor will be liable to strangulation. In this
connection, it is stated that if the creditor's agent
was in fault, and the creditor himself had no
55^
USURY AND DKBT
knowledge of what had been done, the latter will
be sentenced under the clause of doing what
he ought not to do ; and if capital results follow
the penalty will be proportionately increased.
Presumabl)' in the latter case the agent would
be sentenced as an accessory.
It is not permissible for a creditor to seize a
debtor's property in satisfaction of his claim ;
but it is a comparatively venial offence, and is
punished with eighty blows. Even though the
property belongs to the debtor's family, and
the debtor has only an interest in it, the seizing
creditor will not be dealt with as an ordinary
robber — with its contingent disadvantages. So in
the case of Cheng Ch'ien-ts'ai §|5 $£ ^ , where
a creditor seized six cows owned jointly by his
debtor and the debtor's brother, and killed the
debtor in the course of the robbery, the Board
insisted upon the homicide being considered as
killing in the course of an ordinary affray, and
not in the course of robbery — inasmuch as
the debtor had an interest in the cattle, and the
creditor clearly seized them more or less in
consequence of being unable to recover his just
USURY AND DEBT 553
rights (P. A. S. P. App. vol. II. and ante —
p. j8/). The Provincial Authorities thinking that
to distrain six cows for a debt of some fifteen
dollars was beyond question a case of robbery,
and much impressed by the fact that the cows
belonged to another, had treated the case in
the first instance as an aggravated instance of
armed robbery with violence (id.). And so
mere hurt arising during such an affair will
merely be considered battery with intent, and
not as ordinary robbery with violence (H. A. H.
L. vol. XVI. p. i).
But the advantaofeous treatment accorded a
creditor is of a somewhat negative character ;
the simple fact remains that he must not take
the law into his own hands, and that relying
on the law may put him to serious expense
and loss of time. A not uncommon solution of
the difficulty, therefore, is for a creditor to
hano- himself outside his debtor's door , and
o-et the latter strangrled for it.
If a dealer fails to pay his constituents, he
will be punished more severely than an ordinary
debtor. Supposing the debt to be above Tls.
554 USURY AND DEBT
i,ooo, the penalty will be a year's imprisonment
and periodical pressure ; and at the end of the
year, if the debt has not been paid, ninety
blows of the heavy bamboo, commutable in
exceptional cases to thirty-five blows of the
lio-ht bamboo — the debt still to remain due.
A case of the sort is that of Hsiao Kuang-ai
M i)t iii 1 "^ho ^^^^ ^^^ registered his firm and
obtained goods on credit. Of these goods, a
portion was lost during transit over rapids, and
the remainder was disposed of — a deficit of
Tls. 1 1, 600 resulting, of which Tls. 2,900 were
recovered. No fraud it is said was imputed ; but
the debtor was sentenced to be imprisoned for
a year unless he paid the money in the meantime,
and at the end of the year to receive thirty-five
blows of the liofht bamboo : the debt still to
remain due (H, A. H. L. Supp. vol. IV. p. 23).
A gambling debt ]^ ^ gives rise to no
legal liability, and a person who is importunate
^ Q't therefor will suffer.
SMUGGLING 555
SECTION V — SMUGGLING
SMUGGLING
This is considered an injury to legitimate trade,
and the smugrorler must therefore be held to
designedly injure the legitimate trader ^ ^
^mmmmmnrnt^A (h. a. h. l.
vol. X. p. 30). What is meant by this is an
offence deleterious in the primary degree, not
to the State, but to the public at large. It is
a prevalent practice extremely agreeable to the
Chinese constitution, and holding forth considerable
pecuniary advantages. The established law on
the point is rather meagre, and distinction is
made between smuggling in general, and the
smuggling of tea, alum, salt, opium, etc.
In reeard of smuoforlinor in greneral. Whosoever
endeavours to defraud the revenue by paying
less than the rated duty will be liable to a
flogging and forfeiture of one-half the value of
the goods concerned. To convey goods through
a barrier or customs station without a proper
pass renders the offender liable to all the ordinary
penalties for smuggling : and, quaintly enough,
556
SMUGGLING
it is an offence within the law on this point to
purchase cattle without a stamped contract
therefor. Other provisions lay down penalties
for the production of false manifests — in the
case of omissions, all goods so omitted being
liable to confiscation.
In regard of the smuggling of salt, alum, and
tea, there are special provisions. The salt trade
is a monopoly carried on by a limited number
of merchants under special Imperial license,
and the supervision of the salt monopoly is
the care of a special department of the
administration. To engage in the trade without
a license is liable to be visited with a flogging
and transportation : and distinctions are herein
drawn as to whether or not such smuggler was
armed. The salt itself, and the vessel, cart, etc.,
in which it was conveyed, are forfeited to the
State. Furthermore , the pilot or guide, the
agent, the harbourer, and the consignee, are
also liable to transportation and a flogging. To
purchase salt knowing it to have been clandestinely
transported or prepared renders the purchaser
liable to one hundred blows.
SMUGGLING 557
The clandestine sale of tea, and manufacture
and sale of alum, are subject to the provisions
relating to salt smuggling.
It may be well to add that these few selected
points have in no way any connection with the
administration of the Customs under the Foreio-n
Inspectorate.
CHAPTER XVIII
MISCELLANEOUS OFFENCES AGAINST
PUBLIC MORALITY AND HEALTH
SECTION 1 GENERAL CONSIDERATION
GENERAL CONSIDERATION
Under this head are included certain offences
of a miscellaneous character considered to be
injurious to the public morality or health. It is
not proposed to give a disquisition upon Chinese
metaphysics, but it may be pointed out, that
the government of the country being founded
upon moral agency in preference to physical
force, the view adopted in connection with these
offences has been merely to indicate transgression
by legal provision, without insisting upon too
strino-ent a construction or administration of the
GENERAL CONSIDERATION 559
latter. Accordingly, and for instance , gaming-
has been legally indicated as a transgression,
but in practice is much tolerated.
None of the offences under this topic offer
any peculiarly intricate reasoning. Of the various
considerations, those touching bigamy are perhaps
the most important — it may indeed be news
to many to know that there is in China such
an offence at all. The law on the point is
however rigid (cf. also Htcsdand and Wife
— /. 171)- There is a curious assumption in
this connection regarding the inference of a
husband's death after absence for more than a
given period, which closely resembles that well-
known rule of our Law of Evidence — the
presumption of death after seven years' absence.
Of the other offences — those touching
gaming, the stage, and poisons are most noteworthy.
As regards the stage, the theatrical profession
is at present in China in much the position
that it held in Rome. An actor has not a
perfect existimatio^ and is as it were branded
levis nota. Poisons are under judicious surveillance —
in theory : but there is no Public Health Act —
560
nor officials under the Act, to carry it into effect.
There is a curious provision on the point touching
the rearing of venomous animals — be it noted,
with a view to destroy human life ; and accordingly
Zoological Gardens would be permissible.
SECTION II — riGAMY
BIGAMY
It is an offence, punishable with ninety blows,
to take a second spouse, and the marriage is
null and void. Whereas however, it frequently
happens when a man is heir to two families
that he takes two wives with a view to
continuing the succession, in ignorance of the law,
it is provided that in these cases the parties
shall not be compelled to separate — but, as no
man can have two real wives, the status of the
one last married will be that of secondary wife
(H. A. H. L. vol. XL. pp. 21—24).
It is by law a capital offence for a wife to
561
run away from her husband and marry again —
if she do so deliberately. If however the wife
had been beguiled away, and marries because
she is afraid to go back, or is married off by
her seducer, she is merely liable to transportation
(z'. case of M>^ Chu 7u'e Li jgi $ ^ H. A.
H. L. vol. XX. p. 26). The liability of the wife
will arise even though the first marriage was
illegal (H. A. H. L. vol. XL. p. 3).
If the husband has been away for three years
and upwards, and during that period nothing has
been heard of him, it may be assumed that he is
dead, and the wife may marry again on petitioning
the Authorities : and it appears that the wife
may marry again if she has not heard from or
of her husband for the above space, although
she knew that his absence was primarily caused
by the fact that he had been transported —
as in the case of Yiin Ta-hsiao ^ y^ /J> ,
where a period of five years had elapsed (H.
A. H. L. vol. XL. p. i). On the latter point
the law is not clear (cf. Husband and wife
p. I go). The wife will also be only liable
in a measure if — her husband being away
562 GAMING AND GAMING HOUSES
and alive — she marries again within the
space of three years — provided she did so
in the honest belief on reasonable grounds that
he was dead (cf. R. v. Tolson).
SECTION III — GAMING AND GAMING HOUSES PLEASURE
HOUSES PROFLIGACY IN OFFICIALS THEATRICAL
OFFENCES PROPAGATING IMMORAL LITERATURE
— WITCHCRAFT POISONS
GAMING AND GAMING HOUSES
This is Strictly forbidden, though in practice
prevalent and seemingly condoned. By gaming
1^ 1^ is to be understood playing at any game
of chance for money or for goods, and a
penalty of eight)- blows attaches for so doing,
while the stakes are to be confiscated to the
State. Even a friendly game for a bottle of
wine is punishable with eighty blows (H. A. H.
L. Supp. vol. XIV. p. 37), while the dice are
to be destroyed and the stakes confiscated.
To keep a gaming house renders the proprietor
thereof liable to the penalty for gaming, while
the house becomes forfeit to the State.
PLEASURE HOUSES — PROFLIGACY IN OFFICIALS 563
PLEASURE HOUSES
To keep such, if tending' to the abasement
of the general morality, is forbidden under heavy
penalties. To keep a music hall and an opium
divan attached thereto is in any event punishable
with one hundred blows and three years'
transportation — and no circonstances attemiantes
are allowed (H. A. H. L. Supp. vol. XIV. p. 30).
And so in strictness with brothels — the
brothel keeper ^^ ^ incurring liability therefor.
PROFLIGACY IN OFFICIALS
Such tends to set a bad example to the people —
the more so being on the part of those whose
duty it is to set a high moral standard. So an
official who merely spent a night at a music
hall was punished with sixty blows and the loss
of his office (H. A. H. L. Supp. vol. XIV.
p. 30). The same penalty attaches to the sons
of those who possess hereditary rank. An official
who games or keeps a gaming house (supra)
incurs a penalt)- one degree heavier than an
ordinary person.
564 THEATRICAL OFFENCES
THEATRICAL OFFENCES
Acting is by no means discouraged b\' Chinese
Law — die representation of worth)' characters
exercising a beneficial effect on the audience.
Certain limits however have been fixed by the
law with regard to representation, it not being
allowable to represent on the stage such parts
as former Emperors, Empresses, famous princes,
or ministers, under penalty of one hundred blows.
This law, however, seems chiefly to be honoured
in the breach.
Though acting is not discouraged, it is by no
means considered a very honourable profession.
So actors who purchase the sons or daughters
of free persons with a view to educate them
in the profession incur thereby one hundred blows,
as does also the person who knowingly so sells
— a middle-man in the transaction incurring one
degree less punishment. An actor is also under
personal disabilities as to the marriage or adoption
of free persons.
PROPAGATING IMMORAL I.ITKRATURE — WITCHCRAFT 565
PROPAGATING IMMORAL LITERATURE
The author or compiler of an immoral
publication incurs thereby one hundred blows and
transportation for life to a distance of 3000 li.
If an official so offends, degradation and deprivation
of office will be the penalt)'. The vendors of
such immoral publication incur a penalt)' of
one hundred blows and transportation for three
years ; and the purchasers and readers incur one
hundred blows.
The magistrates and officials generally are
naturally responsible for the production and
dissemination of immoral literature, and are liable
to prosecution by accusation before the Supreme
Authorities for want of vigilance in this duty.
WITCHCRAFT
This is nominally punishable with decapitation
subject to revision ; to write books on the
subject is also nominally so punishable. The
penalty is however gauged by reference to the
effect of the offence. Were few persons, or
many, influenced.^ And if but few persons were
566
influenced, the penalty adjudged will merely be
transportation.
Witchcraft forms an important element of
aggravation in certain cases : so to murder a
person with a view to maul or mangle his body for
magical purposes entails slicing to pieces (v. Murder).
POISONS
Theoreticall)' under strict legal supervision. To
sell poison without first having made due enquiry
as to the reason for purchase is punishable with
eighty blows (H. A. H. L. Supp. vol. VIII.
p. 68). Still it is to be seen in nearly every
stall in Northern China, and the salesmen betray
no undue inquisitiveness in selling it.
To purchase a poisonous drug for the purpose
of killing any person is punishable with transportation
for three years and one hundred blows. To sell
such a drug knowing the purpose for which it
is bought entails the same penalty.
To cultivate and prepare dangerous shrubs,
or to rear venomous animals — e.g. snakes —
for the purpose of destroying human life entails
decapitation.
56?
To leave poison about where people are in
the habit of going entails transportation for life
(H. A. H. L. Supp. vol. Vm. p. 67).
To use poison for purposes of adulteration,
however good the reason, is punishable, and if
lives be lost in consequence, heavily — so that
if it be put into wine to give it body, and
persons are killed thereby, a dealer will get military
servitude for life (H. A. H. L. Supp. vol. VIII.
p. 69).
EXCURSUS
NOTES AND DECISIONS, ETC.
ON THE
LAW OF PROPERTY, INHERITANCE,
TRUSTS, ETC.
SECTION I LAND TENURE RIGHTS OF WATER ACCESSION
DO II — DISPOSITION OF PROPERTY MORTIS CAUSA
DO III — TRUSTS
DO IV — GUARDIANSHIP OF INFANTS
EXCURSUS
Section I — Land tenure — rights of
water — accession
The original right of property in land is that of the
State — not of the Emperor personally, but of
the Emperor, under law, as the representative of
the State. In some places also land is held by
direct grant from the Emperor to militar}- servants
— this practice dating from a period some two
or three hundred years back, when the Tartar
rulers, in disbanding their armies, provided for their
old soldiers by giving them grants of unoccupied
land. The general, nearly universal, Jegal tenure
is however acquired by cultivation — by what
we should call 'squatter's right'. Any man may
enter upon unoccupied land and cultivate it \ and
572 LAND TENURE
when he has brought it under cultivation, by
going to the District Magistrate, and professing
himself willing to pay the annual State ground
tax, he can be registered as legal owner — taking
out as it is called a himg cJii ^ ^ or red
title-deed, which forms the root of title. He has
reclaimed the land, and thereby acquired a right to
it, subject to subscription to the general necessities
of government ; and so long as he keeps the land
under cultivation, and pays his ground tax, it is
his. The land may even be allowed to lie fallow.
This right in land confers upon the owner no
special eminence. It is no claim to distinction
in China to be the owner of 100,000 acres of
waste moors. Consequently, what the owner cannot
cultivate himself, he lets to others — but without
the oppressive restrictions which hold in this country.
Merely the current value is taken as a deposit,
with the right to resume ownership by the return
of the sum given. The taxes, the landlord, as
registered owner, has to pay, and as they generally
far exceed in value the inprovements that the
tenant has to make, the latter has no ground
for quarrel. The tenant is quite free to sell his
LAND TENURE 573
interest in the land by simple deed, on every
transfer a tax being of course paid to the Government
for authorisation.
The landlord may sell his estate absolutely,
and the purchaser by payment of certain fees
— not too oppressive — then gets a direct
title, and becomes liable for the State tax. Sale
with conditions is unknown. The Chinese do not
understand legal rights giving ridiculous privileges :
a butcher has a right to ask a person to pay
for sausages sold, but not to say whether the buyer
must fry them or eat them raw : so a landlord
in China, if he sells, must sell, and not dictate
what the purchaser must do with his property.
On such sales of land there are occasionally
prepared documents in some sort corresponding
to our abstracts of title. But usually merely a
simple undertaking (by deed) for responsibility
as to ownership and taxes is entered into by the
vendor and purchaser. Alienations without such
deeds are viewed with suspicion on subsequent
sale, and where they are forthcoming it behoves
a subsequent purchaser to carefull)- examine both
them and the original Jiung cJfi.
574 RIGHTS OF WATER RIGHTS BY ACCESSION
It may be added in conclusion that entail, in
the strict sense, does not exist ; but where property
is devised coupled with a condition such as the
maintenance of ancestral worship it is criminal
to alienate it.
Rights of water. — If a man steal the water
from a reservoir constructed by the owner of the
land to water his field, the owner may seize him
as a trespasser, and the fact that he was so will
be considered in adjudicating on any injury the
owner may do the trespasser. Nay if the trespasser
be armed, and in fencing with him, the owner
kills him, he will be held harmless (H. A. H.
L. vol. XXX. p. 27 — also z^. yustijiable homicide
of trespasser).
Rights by accession. — Reclaimed washes
come under the same category as reservoirs
constructed for irrigation purposes ; but to acquire
property in them, report must be made to the
Magistrate of the intention to reclaim, the ground
must be measured, and the tax thereon fixed.
Should banks form, the owner of the adjoining
land can get them added to his property ; but
he must first have an exact measurement made.
DISPOSITION MOKTIS CAUSA 575
and report as before — otherwise persons
carrying off crops therefrom cannot be treated as
trespassers.
Section II — Disposition of property
mortis causa
There seems to be no absolutely fixed law
in regard either of inheritance, or testamentary
dispositions of property ; but certain general
principles are recognised, which the Court will not
allow to be disregarded without sufficient cause.
CASE I DECISION OF LI HSIN-SHUI
Paternal property equally divisible betiveen so?is
zvhether by i^^ or 2'"-^ zvife, subject to claim
of i^' zvife for burial expenses, etc.
In this case. Ho Sheng-chi and the deceased
Ho Sheng-chung were by the i^^ venter, and
Ho Sheng-mao and Ho Sheng-hui by the 2°^
venter, and their father seems to have left an
576 DISPOSITION mo/;tis causa
estate of 47 ?jut of land to the four in common.
The principal wife M'* Lo does not appear
to have had equal affection for all the children,
but to have grasped the whole for Sheng-chi,
not only holding the propert)', but eventually
selling it secretly for Tls. i 50 — the sale being
in the name of M^"' Lo, but really for the benefit
of Sheng-chi.
Now however comes a bad business on the
part ot Sheng-mao, who, though at first opposing
his half-brother, seems to have been won over
by the bribes and cajolery of M'^ Lo and her
son to their side, and to forgetfulness of his full
brother Sheng-hui — who is left single-handed
in the lurch.
When the case came on, Sheng-chi had not
a word to say for himself; but Sheng-mao,
thrusting himself forward, flourished about, saying
M'^ Lo was the head of the family and Sheng-chi
was his elder brother, that he was quite willing
that Tls. 50 should be set aside for M'^ Lo's
funeral expenses, and that the remaining Tls.
100 were still in Sheng-chi's possession, and had
not been made awa)^ with.
DISPOSITION MORTIS CAUSA 577
We wondered at this, not seeing from where
Sheng-mao had got his surprising knowledge of
propriety, and unable to reconcile his present self-
abnegation with his previous attack on his elder
brother, when, hearing an exclamation of disgust, our
attention was drawn to Sheng-hui who was standing
there — and questioning him, the whole story
came out as clear as the palm of your hand,
and Sheng-mao 's scheme fell to pieces.
The fair decision therefore seems to be that
Tls. 50 should be set aside for M'"* Lo's funeral
expenses — for though the sum be more than
sufficient, it is a duty of children to provide for
the burial of their mother, and the principal wife is
entitled to privileges over the secondary wives ; and
further that the remaining- Tls. lOO be divided into
four shares, and Tls. 2 5 each given to Sheng-chi,
Sheng-mao, Sheng-hui, and Ho Wen-shui son of
the deceased Sheng-chung. All agree to this, and
the case is at an end ; but as quarrelling among
brothers is not commendable, Sheng-chi and
Sheng-mao must be chastised according to their
deserts. Sheng-chi is to pa)' the various shares.
per Li Hsin-shui M.
c. E. G. 37
578 DISl>OSITiON .MOKTIS CAUSA
Note. — The principle laid down is that at
the death of a father his property is considered
to be vested in all his sons equally, whether by
the venter of his principal or secondary wife ;
and although the principal wife if surviving has
a certain right of administration, and a claim on
the estate for provision for her funeral, the property
does not vest in her, and may on cause shewn
be distributed among the heirs; also that on the
decease of one of the joint heirs, his interest
vests in his heir or heirs. Further it appears that
a secondary wife has no claim on an estate.
CASE 2 DECISION OF LI HSIN-SHUI
Sons, whether by first or second venter, must
share and share alike. A junior shoidd for
form yield his senior a larger share,
bid the senior shoidd not accept it.
This is a dispute between Yao Wu-chii and
Yao Wu-wei, arising out of a mistake on the
part of their deceased father Yao Ta-hua.
Wu-chli appears to have been the son of
DISPOSITION MORTIS CAUSA 579
Ta-hua's first wife, and Wii-wei only of his second.
But although Wu-wei was young then, he would grow
up afterwards, and Ta-hua having the reputation
of knowing what was due to his children, should
not have exalted the child of his first wife and
abased the child of his second, by leaving the
first 6/10^'^^ and the latter 4/10^'^^ only of his
property.
And Wu-chii on orivinor the matter full consi-
deration should have set the will aside and paid
no attention to it, coming to a fair arrangement
with his brother; for the maxim ''the will of the
"father should be respected" was uttered with
regard to the succession to a kingdom, and cannot
be quoted by Wu-chli in the matter of family
succession.
Nor does the maxim "the younger brother
"should take the less share of the fruit" apply
— for it is not said that the elder brother should
take the grreater.
I do not think however my predecessor was
right in ordering Wu-chii to pay his brother
Tls. 2,000, as this was impoverishing the elder
to enrich the younger, and his imprisonment and
58o DISPOSITION MORTIS CAUSA
harsh treatment must have troubled Wu-wei.
However, the misfortune is irremediable ; in
fighting for the fleece they have wounded the
body. The decision of the Magistrate that Wu-wei
should disgorge Tls. 500, and each rest satisfied,
appears fair to both.
We decree therefore that the Mamstrate's
decision be upheld, and the dispute be so settled-,
and we recommend both parties to remember
that further litigation will only lead to the utter
waste of the family property, and their reduction
from wealth to poverty.
per Li Hsin-shui M.
CASE 3 DECISION OF CHANG MEI-AN , MAGISTRATE
OF CHUN-AN IN CHEKIANG
Sons, whether by birth or adoption, prefe^^red to
daughters, and their claim to inheritance
tipheld even against written will.
In this case Yeh Pi-chien's principal wife, M'"^ Li,
a blind woman, having no sons, but a daughter
only, married to Yu Chi-wen, Yeh tried to get
DISI'OSITION .l/i>/r/'/S CAUSA 58 I
over the curse of her barrenness by taking a
second wife M^* Hsii — and in his extreme anxiety
to make provision for the due performance of
the ancestral rights, adopted Yi the secohd son
of his younger brother's wife M'^ Wang.
No sooner was this complete, than the second
wife conceived and Yeh Pi-chien died, leaving
a posthumous son and a destitute mother ; for
M}^ Li had no reofard for the son of the second
wife or the other adopted son, and caring solely
for her own offspring, utterly forgot the true line —
helping Chi- wen to make forcible entrance, and
when the head of the family, Yeh Te-tsang, in
the general interest turned out the interloper,
bringing accusations of violence and robbery.
Thus M''* Wanor and M''* Hsli have been
forced into advancing their claims.
Going on to the documentary evidence and
the fictitious deed produced by Chi- wen, setting
forth that his father-in-law left the four //iu to
him by will, it seems unnecessary to decide on
the genuine character of the document ; for
supposing it to be so, although when there
seemed no great hope of a male line Pi-chien
582 DISPOSITION MORTIS CAUSA
was perhaps justified in leaving his property
to his half-son or daughter, yet as there are
now both a legitimate and an adopted son to
be provided for, and the property is scarce
sufficient to find them food, Chi- wen has no
business to claim it.
We set the will aside therefore, and direct
the heads of the family to draw up an inventory
of the property, and apply to the Magistrate for
a deed settlingf it for the establishment of the
two sons; and if there be any litigation, we will
see what the penal law will do.
per Chang Mei-an M.
Note. — In this case it is clearly laid down
that male heirs — whether by blood or adoption —
existing, females have no claim to inherit, and
that even a written will in their favour will be
set aside. Also that children by blood and
adoption will be equally regarded.
DISPOSITIUN MOKTIS CAUSA 583
CASE 4 DECISION OF HU CHE-YEN, PREFECT
OE NANKING
Dowry of daughters , and effect of marriage tJiereon.
This is an action brought against Chia
Yiin-min, son-in-law of Chu Chimor-fanof.
It appears that Chung-fang, having no direct
heirs, married a daughter by a concubine to
Tien-min, eivine him a marriage room for the
purpose, but apparently merely for the term of
his stay — there is no evidence that the
provision was meant to be permanent, the couple
being one degree removed in consanguinity.
On Chung-fang's death however, Tien-min, hot
on the property, moved in with his family and
took possession, overlooking the fact that Chun-
fang's star had still a twinkle left in it, and
that it was jumping at a conclusic^n to at once
determine that he would have no posterity.
It is alleged, however, that while alive Chung-
fane orave his dauohter the wing- of his house
as dower. But if so, why did she and her
partner wait until Chung-fang's death to take
584 DISPOSITION MORTIS CAUSA
up residence? And in the absence of all documentary
evidence, the allegation must be rejected.
The representation of the plaintiff, M''^ Chung-
fang nee Hu, appears very reasonable. She prays
that Tien-min's claim be not immediately utterly
rejected ; but that the case be adjourned for
three months, and that his rights be dependent
on whether she o-ives birth to a son or a
daughter ; that if it be a son, he take his
father's property ; if a daughter — in which
case she has betrothed her to one Fang —
that two daughters standing in the position of
one son, the house be divided between the two
parties. We decree accordingly.
per Hu Che-yen P.
Note. — The recognition of the force of dower,
but the requisition of possession or documentary
evidence to prove it.
It appears from this case that a daughter's
share in the paternal property is determined by
her marriage, but that if her father dies
subsequently without male heirs, the property is
divided equally between her and the other daughters
DISPOSITION MOKTJS CAUSA 585
— subject possibly to the rule of hotchpot. As a
matter of fact however, and indeed it appears
indirectly from this case, male heirs existing,
unmarried daughters are nevertheless entitled to
dower in the proportion of one-half the son's
share ; but it seems that the custom in this matter
varies in different provinces, although the son is
invariably bound to provide for and obtain the
marriage of his sisters.
CASE 5 DECISION OF MAO TIEN-LAI, PREFECT
OF PING-YANG
A brother inherits if deceased is chi/d/ess, bid,
althottgh heir, he cannot prevent his brother
alienating the property ivhile living, etc.
In this case, Tsao Hsiao is uterine brother of
Tsao Chi-hsien. Chi-hsien appears to be childless,
and in easy circumstances ; Hsiao to have two
children, and to be utterly devoid of property —
covetous therefore of the valuables his brother
may leave behind him. Chi-hsien selling a piece
of land belonging to him to the Militar)- Doctor
586 DISPOSITION MORTIS CAUSA
Lo Hung-pao , Hsiao holds that his brother's
property is his, and outrageously prevented Hung-
pao enclosing it — and Hung-pao brings an action
against him. Before this is decided, Hsiao tries to
influence me [to decree] that Chi-hsien dying childless
his property goes to his brother. Chi-hsien however
happens to be alive, and Hsiao has therefore
no claim — and for attacking the purchaser when
his attempt to get his brother's land from him
has failed, he must be flogged.
per Mao Tien-lai P.
Note. — This case lays down that a brother
inherits when the deceased is childless, but that,
although heir, he cannot prevent his brother
alienating his property while living. As he could
have stopped the sale had his brother inherited
the land coupled with the condition of maintaining
the ancestral sacrifices, whether this condition had
been specific or merely to be implied, the plaintiff
seems to have thought himself justified in preventing
the transfer — though there was no such condition —
on the simple ground of the injury to his prospects
thereby.
587
Section III — Trusts
CASE 6 DECISION OF YEN HSIAO-HSU,
MAGISTRATE OF SHAN-YANG
Religions Trusts — The object of a trust being
carried out, the trust ivill still be
inaintaifted , etc.
In this case, Lo Chi-su, a compound of wolf
and tiger, already convicted at the Prefecture
of poisoning the country with his venom, on
pretence of redeeming his offence, makes a
fraudulent representation claiming a piece of land
forming part of the demesne of the Hsing-lung
monastery, as established by an inscription on
stone of long standing. The monastery itself has
been burnt down, but the conditions attached to
the original grant, as to services, are still fulfilled
by the priest Tsung-chen in a mat shed, known
as the Lei-chia-chung farm. Chi-su represents
further that the aforesaid land had been sold to him
by a person against whom he has a spite —
one Penof Chien-i.
588
Now, supposing the sale to have been regular,
Chi-su has no right to vent his spite on Buddha ;
and his conduct in passing from injuring the
common people merely, to attacking the priests,
and not satisfied with snapping at men, trying
to bite at Buddha, shews that the punishment
inflicted by the Prefect was not enough to
frighten him. We must try therefore ifthecangue
will have any effect.
per Yen Hsiao-hsu M.
Note. — Peng Chien-i, it would appear, was
the person entitled to alienate — supposing the
trust to have lapsed ; but it is laid down that so
long as the objects of the original trust are
carried out, it will be maintained even against
the representatives of the original grantors.
Had the services been given up, the decision
would have been different.
Note the weight given to the record of the
original trust engraved subsequently on a stone
tablet.
589
CASE 7 DECISION OF CHI ERH-CHIA, JUDICIAL
COMMISSIONER OF YEN-CHOU
Religious Triists — A bona fide purchaser of
trnst property for vabiable consideration
and zmthont notice ivill not be
disturbed, etc.
In this case Yang Shih-chin is the purchaser
by regular sale, witnessed by formal deed, of
eighteen mu of valuable land belonging to one
Sung. It appears moreover that the land has
passed through at least three hands — Sung
having purchased it of one Fang, while before
this it is alleged that it was owned by one Hsiang
and granted by him to the Kao-lung monastery.
The black-frocked gentry however held their
peace when Fang took possession of the property ;
and it is only now after twenty years have
elapsed that a wandering bonze Chao Hsi ,
combining with a disreputable associate Hsiang
Hsiao-cheng, makes an attempt to get violent
possession of the property.
The case has been decided by the Magistrate,
5 go
but his decision not o-ivins: satisfaction the case
is brought in appeal by Shih-chin.
Firstly — Having given valuable consideration
for the property, Yang cannot be said to have
wrongfully seized it.
Secondly — If it be alleged that Sung had
no deeds to shew for his possession, the priests
would have been in much the same position as
to proof of title, seeing the)^ gave no consideration
for the property.
Thirdly — Chao Hsi does not appear to be
the regular representative of the Brotherhood,
and has no right to appear in the action.
We cannot reconcile the iofnorance of the
right to the land at the time it was alienated,
and the knowledge now — the ignorance of
those primarily interested and the knowledge of
their descendants, the ignorance of Fang's wrongful
title and the knowledge of Sung and Yang's
wrono-ful titles. Moreover the conduct of the
shaveling (not contented with the six imi he
had got) in seizing the opportunity to obtain
violent possession of twelve imt more, is abominable
and deserving of punishment.
591
We decree therefore that the Magistrate's
decision be reversed ; and for the nonce holding
Buddha's staff for him order the bald-headed
reprobate to be severely flogged.
per Chi Erh-chia J. C.
Note. — A <5(?;^(^y7"rt'(? purchaser of trust property
for valuable consideration and without notice
will not be disturbed, provided those interested
had ample opportunity to oppose the transfer
if they saw fit to do so. But inferentially a
defective title would not hold if the rig-htful
proprietors represented the matter within reasonable
time. Also a bequest to a monastery or temple
will be interpreted as a bequest to the priests
specially attached thereto and their successors
on the spot — not to the Church generally.
The decision would possibly have been different
if the temple had been endowed coupled with a
condition to maintain ancestral worship, and had
one of the family interested come forward to
protest against the alienation.
592
CASE 8 DECISION OF LIU TIEN-YU, MAGISTRATE
OF YAO-CHOU
Private Trusts — A bona fide purchaser of
trtist property for variable consideration
will not be disturbed save on
clearest evidence, etc.
Wei Cheng-pu, some years back, appears to
have purchased a piece of waste land from
Chen Huang-lo, without any claim being raised
by Huang Chih-chia — who now at length comes
forward as owner of the property, and builds a
house on it.
In support of his claim, he produces an
unregistered deed drawn up at the end of the
Ming dynasty, the seal on which appears to be
of the present dynasty. This can scarcely be
accepted. However as Chih-chia is a poor scholar,
we direct Wei Cheng-pu to give him two taels
as a charity, and at the same time the deed
must be destroyed — lest it be brought in
question hereafter.
per Liu Tien-yu M.
59-
Note. — The title of a bona fide purchaser
for valuable consideration will not be disturbed
save on the clearest evidence ; and doubtful
documents calculated to afford ground for litigation
will be ordered to be destroyed, if the Court
thinks them insufficient proof of the claim based
on them. Inferentially it is however laid down,
that on clear evidence of plaintiff's title, the
purchaser would have had to give way.
Note also that a seal subsequently affixed,
will not be considered sufficient authentication
of a document ; and the disinclination to admit
deeds executed previous to the commencement
of the present dynasty.
CASE 9 DECISION OF FANG CHAO-TSUN,
MAGISTRATE OF LE-SHUI
Private Trusts — Property devised zvith
condition of maintaining ancestral
worship cannot be alienated.
In this case the Chen family had seventy mtL
of land dedicated to the maintenance of ancestral
C. E. G. 38
594
worship, each in turn having the management
of the sacrifices. This had continued from time
immemorial, the provisions of the founders of
the family being such that it was impossible for
any unfilial son or careless grandson to divert
the land to other uses, though the family continued
for one hundred generations. Suddenly an old
but reprobate graduate Chen Chi-yi, disregarding
the pious intentions of his ancestors, greedily
and avariciously tries to appropriate twenty inu
to his own ends. This was foolish, for his grey
hairs were many ; he was like a burnt-out
censer at night when day is about to appear ;
little earthly enjoyment was before him, and
dead he would not have lost the property, for
if he died without children, would he not in the
next world have fared with the rest of his
ancestors — sharingf alike with them the common
provision for their spirits.'^ And although Chen
A-kuang be a widow , yet she is a member
of the Chen family, and is asserting the great
principle that the ancestral worship of the family
should not be neoflected.
We decree therefore that the trusteeship go
595
on as before, each in turn taking it, and that
the tenants pay no heed to the terms of the
underhand lease.
The offender ought to be punished, but in
consideration of his age and poverty, we excuse
him his disrespect of his ancestors.
per Fang Chao-tsun M.
CASE lO DECISION OF LE YEH-YUAN, PREFECT
. OF CHEN-HUA
Private Trusts — It is criminal to alienate
property devised siibject to condition of
ancestral zvorship , etc.
In this case, it appears that the parties Chiang
Ju-jen, Chiang Hsiang-lin, and Chiang Te-chi are
all descended from a common stock ; that their
common ancestor Chiang Shen left lo imi of
land to be divided between the two branches
of the family ; that Hsiang-lin represents the
elder branch, and Ju-jen and Te-chi the cadet
branch ; that the separated branches have gone
on harmoniously for many years — but have
596
now at length fallen out on the point whether
the land was devised for the ordinary support
of the devisor's descendants, or the encouragement
of such of them as mig-ht devote themselves to
study. From want of clearness on this point a
battle of rats and bird has arisen.
According to Ju-jen and Hsiang-lin, their
ancestor devised the property to the two branches
to manage, with the duty of maintaining the
ancestral sacrifices, and further that it is laid down
in the deed that the land shall be industriously and
economically cultivated. According to Te-chi, the
devisor left it for the encouragement of virtue,
the property in the estate falling to any of his
descendants who might devote himself to study —
it being- laid down in the deed that it should be
given to the students, lest while following their
studies they should be in want. Te-chi took his
degree last >ear, and therefore claims the
property. But, in the meantime, it appears to
have been sold by Hsiang-lin and Ju-jen to the
Professor Chang-sui, and transferred to him.
Neither party have any proof, for the original
deed merely says "to be zealously cultivated"
597
and does not say anything about diligently
stud\'ine — the devisor, I am inclined to think,
knowing how much more necessary property
would be to common cultivators, than to those
possessing the resources of their pen. Te-chi's
claim, therefore, is contrary to the intention of
the original devisor. Nor are Ju-jen and Hsiang-
lin without blame ; the propert)^ was left to provide
for the maintenance of ancestral worship, and
they had no right to sell it and leave no pro-
vision for the spring and autumn sacrifices. I
decree that they be flogged for the satisfaction
of the injured manes of their ancestors.
per Le Yeh-yiian P.
Note. — It is here laid down that it is
criminal to alienate property devised coupled with
the condition of the maintenance of ancestral
worship — the propert)' in that case being
considered in some sort entailed ; but it does
not appear that the bond fide purchaser for
valuable consideration is disturbed ; therefore
notice is also taken of two further uses, to either
of which the proceeds over and above those
598
devoted to the original trust should be applied —
the maintenance of the family generally, or the
special support of those who devoting themselves
to literature reflect honour on its deceased head.
Further it is laid down that where there is
nothing to shew the intention of the devisor, he
will be presumed to have taken a common-sense
view of things, and wished the proceeds of the
estate to be devoted to the use of those having the
most need — and that this generally will be the
ignorant labourer, and not the intelligent student.
CASE I I DECISION OF LIU HUANG-CHUNG,
PREFECT OF FOOCHOW
Advowsojis — The foundation of a temple
giving a right of patronage to the fo7mder
and his heirs gives a right indefeasible
by S2ib sequent benefactors , etc.
The dispute between Yang-hung and Chang-
mou appears to be as to who should really be
considered Patron of the Fu-tang-tzii, the other
matters having flowed in. The temple appears
599
from the records to have been built by one of
the Yang famil)- — the character Yang having
been introduced into its name to brine them
good luck. It appears also that it was subsequently
repaired by one Chang, who, having endowed
it with lands, claims in consideration thereof to
be considered Patron, and has furthermore
altered the character Yang in the name and
drawn up new records.
Now it is evident that there cannot be two
lords in one temple without continual broils, and
that one o-ood deed would be the foundation
of endless misfortune [if this were sanctioned]. I
decree therefore that the temple belong to the
Yang famil)' •, that Chang take his endowment
back again, and sell it or give it to somebody
else ; and as I doubt — seeing that he got
a rent from the priests of Tls. 3.20 annually —
that Chang's gift was altogether a free and
generous one, I order him to be flogged.
per Liu Huang-chung P.
No^e. — The foundation of a temple giving
the right of patronage to the founder and his
600 GUARDIANSHIP OF INFANTS
heirs gives a right indefeasible by subsequent
benefactors ; although these will be allowed to
recall their benefactions if the consequent privileges
of patronage are denied them.
The summary way in which the unsuccessful
party to the suit is sentenced to corporal correction
on apparently general principles may seem rather
arbitrary ; but in point of fact, the flogging being
redeemable by a small fine, it amounts to very
much the same as a decree of costs against him.
J
Section IV — Guardianship of infants
CASE I 2 DECISION OF CHANG MEI-AN, MAGISTRATE
OF CHUN- AN IN CHEKIANG
GiLardiansJiip of children and property devolves
on next of kin , or failing them , 07i such
person of blood-relationship as the family
appoint to act, and stich appointment
cannot without cause shozun be
attacked by collaterals , etc.
«
In this case, a son of (the plaintiff) Chu Chun-shih
had married a daughter of one Yang Ju-tzii.
GUARUIANSHIl' OF INFANTS 6oi
Ju-tzit and his wife subsequently falling victims
to an epidemic, left two children, scarcely able
to walk and still requiring a sheltering wing, to
the care of their uncle Ju-pin. Afterwards Ju-pin
died, and his widow M'^ Yu, feeling unequal to
the guardianship, fell back on the kindred of the
children — Chu Che-ta (the mother's family), Yang
Hung-lo (the father's family), etc. — who drew up
a trust deed, making over the property on trust
to Yang Hung-ping, an uncle of Ju-tzii, and
appointing him guardian.
This appointment appears to have been very
proper, as Hung-ping was a man of age and
position and related by blood to the children ;
but it is violently attacked by Chun-shih, Yang
Chun-yang, a member of the family, and She-
chien, a connection by marriage.
We will not enter into their motives ; but
She-chien, being merely a connection by marriage
can scarcely establish a claim to the guardianship •,
and we fear Chun-yang's heat in the matter
would not be to the advantage of the children ;
nor, when we look into the matter, does Hung-
ping appear to have neglected his trust —
602 GUARDIANSHIP OF INFANTS
everything is still there, nor is there any reason
for Chun-shih and the others worrying about
the matter.
We trust, therefore, that Hung-ping will go on
with his difficult task of guardianship in the
spirit in which he has commenced it — so that
when his wards grow up it may be said that
the age of devotedness did not pass away with
Ying and Chui.
per Chang Mei-an M.
Note. — The principles herein acknowledged
are : — that the guardianship of infants is
primarily the duty of the next of kin, that the
wife will continue in the position of the husband
on his decease, that if she desires to be relieved
•of her trust the appointment of a guardian will
be made by the blood-relations, and that this
appointment cannot be attacked without cause
shewn. Also that a connection by marriage has
prima facie no right to intervene, although in
case of neglect of the wards or injury of their
property he might as a remote relative be heard on
their behalf.
GUARDIANSHIP OF INl-ANTS 603
CASE I 3 DECISION OF LI WEN-CHANG, DEPUTY
SALT COMMISSIONER OF THE LIANG-HUAI
Relatives are the natural guardians of children
left orphans, but if shoivn to be imivorthy
of the trust, a testamentary disposition
givijig the guardianship to a
stranger will be upheld, etc.
In this case Yung Jih-hsin, the deceased, the
son-in-law of Wang Ming- wo, left a son Yung
Yi-lang, and it is established that Ming- wo was
a person of vile reputation.
On the approach of death, Jih-hsin appears
to have been very anxious regarding the unprotected
state in which he was leaving his son ; for
although willing to entrust his care to his
mother-in-law, he was afraid to leave the property
in charge of his father-in-law — apprehending,
as has happened, that he would sell it. And he
was wise ; for as a son is the best judge of his
father, so is a son-in-law of his father-in-law.
Jih-hsin therefore left his son to the care of
his wife's family ; but falsely representing that he
604 GUAKDIANSIIU' OF INFANTS
had sold it all, left his property secretly in trust
to his friend Fang Yung-jen.
Ming-wo, however, heard of it, and at once
reclaimed it from Fang ; and in three years it
was all made away with — as Jih-hsin had
anticipated.
If we excuse Ming-wo 's disregard of his son-
in-law, as a person outside his family, he should
still have had consideration for the son left by
his dead daughter. And can this son, who
having lost his mother when three months' and
his father when four years' old, and who is
entirely dependent on these few mu of land for
food , raiment , and marriage , be satisfied —
now that all is dissipated, and he has nothing
left to clino- to?
It appears that the portion of the estate which
has been sold is utterly gone, but about half
the property has been mortgaged and can be
recovered. We decree therefore that Mingf-wo's
property be disposed of and applied to the
redemption of the recoverable property •, that it
be given to Fang Yung-jen in trust for the
orphan as his friend desired, and be handed
GUARDIANSHIP OF INFANTS 605
over to Yi-lanof when he comes of ao-e ; and
we order that Ming-wo be flogged for disregarding
the dead and injuring the living.
per Li Wen-chang D. S. C.
Note. — Relatives are the natural guardians
of children left orphans, but if it is shown that
they are tmworthy of the trust, a testamentary
disposition giving the guardianship to -a stranger
will be upheld ; otherwise it would appear the
trustee so appointed cannot resist their assuming
the guardianship and taking possession of the
property.
Note also that the purchasers of the alienated
property in this case are not disturbed, although
it is admitted the land was improperly made
away with.
MISCELLANEOUS APPENDICES
Appendix I — Evolution of Law of Marriage
do. II — Analogy between the Chinese and
other systems
do. Ill — List of works for study
APPENDIX I
EVOLUTION OF LAW OF MARRIAGE
The records are necessarily imperfect, but there
is Httle difficulty in evolving both the manner and
the reason of the law.
In the earliest times, utter savages, clothed in
skins and dependent for food upon the fruits they
could find in the forest, and the animals, scarce
more bestial than themselves, they could entrap by
craft or strength, each for himself wandered through
the jungle. When two of opposite sex should chance
to meet, the reproductive instinct, excited by the
chance rencontre, would be satisfied without further
formality — and they would probably go their way
either immediately or shortly afterwards. Some of
the unions would be more permanent however, and
in their duration the lesson of the advantage of
mutual aid would soon be learnt.
C. E. G. 39
6lO EVOLUTION OF LAW OF MARRIAGE
The next stage would be the association of these
wandering individuals for the capture of some animal
too strong for one alone to overcome. Bands would
be formed which would wander through the woods
together in search of game.
By degrees the benefit of living in communities
would impress itself upon them. Some could go
abroad and hunt, while the others prepared the
skins for clothing, guarded the stores of roots and
nuts, collected fuel, and prepared the suppers of
the tired hunters when they returned to the lairs
in which they lived.
Eventually the more intelligent would become
distinguished from their fellows, directing the chase,
and superintending the division of the spoils ; and
from the mutual jealousies of these chiefs it would
come that one of their number would be considered
head of all.
Such would appear to have been the case in the
period in question, whether Fu Hsi signifies one
individual or is merely a general name for the leaders
at that period — an immaterial point. The attention
of the ruler or succession of rulers at that period
appears to have been directed to the necessity of
making some arrangements to remedy the evils the
causa teterrivia belli was ever causing. For now living
together in groups with the women round them,
EVOLUTION OK LAW OF MARRIAGE 6ll
it would happen from time to time that the same
damsel would at the same period attract the notice
of several braves, with the result that there would
be a fight for her possession : perchance there would
be no fight, but the chief would most coolly appropriate
all the desirable women within the group to himself.
In either event the result would be turmoil and
discontent.
Fu Hsi, as a way out of the difficulty, decreed
that no marriage should take place within the various
groups or. families: they must look outside for their
wives: the women born in the family were taboo
to all belonging to it. But the times were not yet
ripe for civil marriage ; and each union was accordingly,
in the vast majority of instances, a rape — but a
rape permissible only upon those outside the group.
The family might within itself live at peace.
It is fabled that the same ruler instituted the
Hundred Surnames still existing (upon which the
well-known child's primer is founded), dividing the
tribes into a hundred families, and giving each the
name their descendants still bear. This is extremely
doubtful, for numbers in early Chinese history were
rarely specific — 3, 5, 10, 100, 1000, loooo, mean
all, everyone, and not the exact number — so all
therefore that can safely be attributed to the Fu
Hsi in question is that he caused the various clans
6 12 EVOLUIION OF LAW OF MARRIAGE
to adopt the names of their chiefs and made their
own women taboo to them.
Fights would still go on, but not to the same
extent; for the clans would no longer care to retain
women that could be nothing to them, and would
make them over to those who came to seek them,
without a fight — provided the claimant purchased
the right to make her addresses by a sufficient
offering of game.
APPENDIX II
ANALOGY BETWEEN THE CHINESE AND
OTHER SYSTEMS — ESPECIALLY AS
REGARDS ROMAN LAW
To trace analogies between the Chinese and other
civilised systems of law, is tempting, interesting,
and perhaps not unprofitable. Compared even with
modern European systems, many striking similarities
may be remarked : but perhaps more genuine analogies
may be traced if a comparison be made with systems
of an early period. And this is very natural, for as
compared with China the tendency in other civilised
countries has been 'change'. By 'change' of course
is not necessarily implied 'progress', but alteration
of ideas and thought — possibly disruption. And
changes in the law have naturally been synchronous
with changes in the general conditions.
For the sake of illustration , China may be
represented as having moved — it may be slowly,
6l4 ANALOGY BETWEEN THE CHINESE AND OTHER SYSTEMS ETC.
but ever onward — in the same straight line. Other
civilisations originally moving in nearly parallel line
with China have some of them ever so progressed —
but, for the most part, at various points have diverged
at lesser or greater angles. And so the divergence
between China and its system and other existing
systems is at this period great indeed.
It is accordingly to an early representative system
that reference for purposes of analogy may most
fruitfully be made. Roman Law is a subject, a
knowledge of which — more or less — is pretty
general ; it is therefore proposed to contrast this
system and the Chinese in somewhat superficial
detail.
It will surprise many to learn the number of
similarities between the Law of Rome — more
especially at its maturity — and that of China.
Prior to the period of Roman legal maturity a few
simple analogies may be traced with a similar epoch
in Chinese Law. So may be noted the general
resemblance of the publications prior to the present
Chinese Code, and the Edictnm Perpetnitm: and of
the earlier attempts at codification in China, and
such publications as the Codex Gregoj'iamis.
It is however as aforesaid in the period of legal
maturity of both states that most striking analogies
will be found. So at the start there is the resemblance
ANALOGY BETWEEN THE CHINESE AND OTHER SYSTEMS ETC. 615
in the manner by which the present Chinese Code
at its inception and Justinian's Codes were formed
respectively {z'. preface to original Chinese Code of
present dynasty A. D. 1647) — in either case a
solicitous Emperor being aided by distinguished
scholars. And of other likenesses in this connection :
between the discouragement of publications additional
to the Chinese Code (save by authority), and such
in Rome: between the Li, and enactments
supplementary to the Justinian Code : between the
respective manners of legislating by edicts, decrees,
and rescripts.
And next of the stated law — the comparison
being also chiefly with mature Roman Law. As regards
the law touching relationship in China and the
conditions prevailing between parent and child (the
doctrine oi potestas being highly developed in China
— cf. filial piety), husband and Wife, master and slaves
and freedmen, master and pupil — and again on
such general points as adoption, and copartnership of
relations in the family estate. Again as regards the Law
of Property, many of the Chinese principles hereon
resemble the Roman, even to such comparatively
minor points as accession and alluvion — but the
nature of the various estates in general differs.
Further touching contracts generally : there are
mutual resemblances in the principles, such as
6l6 ANALOGY BETWEEN THE CHINESE AND OTHER SYSTEMS ETC.
agreement, fraud, duress, and the mode of regarding
the doctrine of consideration : and there are additional
resemblances between the respective varieties of
contracts — contracts re, verbis, Uteris, and consensu,
all exist in Chinese law. Agency is however fully-
recognised in China, whereas it was not so in Rome*
Again, as regards delicts, there is the same distinction
in both systems between wrongs to the person and
wrongs to property — between injuria and daniniini
injuria. And there is also in this connection an
analogy in the manner in which, according to both
systems, a slave was assimilated to property. Again, of
specific offences, there is the same comprehensiveness
of the offence of larceny — touching e.g. embezzlement:
between tao ^ or larceny in China, and furtum
in Rome : there is even the close analogy between
the general division of the offence in both systems —
between ch'ieli tao ^^ *^ [tao by stealth, theft)
and ch'iang tao i^ ^ (open tao, robbery) in China,
and furtum manifestujii or nee manifestum in Rome.
As regards procedure and administration there are
also points akin : of administration, perhaps between
the ch'eng shen (fhih kuan ^ ^ ^ ^ ^^ sitting
magistrate in China, and the judex — and the remedies
for injustice lying against both functionaries: of
procedure, certainly in such points as appeal — in
both states the appeal resting ultimately with the
ANALOGY BETWEEN THE CHINESE AND OTHER SYSTEMS ETC. 617
Emperor, but commonly with a select Board (the
Judiciary Board in China, the consistorium in Rome).
Finally there is the general position and condition
of the professional class in China at the present
day — not very dissimilar to its position in Rome
prior to Diocletian.
Such are a few of the analogies between two at
first sight very different systems. But the comparison
is not intended to be pressed too closely, or possibly
two or three very incorrect conclusions will be
evolved by the ingenious — for instance, that the
Chinese system is behind the times: or possibly
even that China has been much indebted to Rome
or vice versa. No, the curious points are not these,
but this — that two races shut off from each other
should have thought and moved much alike. The
Chinese system is not behind the times of China —
but is admirably suited to them; nor is the system
an ancient curiosity or relic — but the evolved
production of 4000 years.
APPENDIX III
LIST OF CHINESE WORKS RECOMMENDED
TO THE ATTENTION OF THE STUDENT
TITLE ETC.
REMARKS
CODE, ETC.: —
Ta Cliing Lii Li 'j^^'^^
"The Fundamental Laws and
"Supplementary Statutes of the
"Ch'ing (present) dynasty".
Reference to the following is also
instructive : —
Ta CJiing Lii -^ yp| '^
"The Fundamental Laws of the
"Ch'ing (present) dynasty" — or
original edition of the Code.
The latest
edition should be
procured. -
An edition with
preface by the
Empeior Shun
Chih, bearing date
cb'ca 1 646, is fairly
easily procurable.
LIST OF CHINESE WORKS (CONTD.)
619
TITLE ETC.
REMARKS
CODE, ETC. (CONTD.)
Ta ClCing Hui Tien Tse Li y^
(t # A MiJ W
"The Official Practice of the
"Ch'ing (present) dynasty".
Lie Li Pien Lan %%^^
"A convenient exposition of
"the Fundamental Laws and
"Supplementary Statutes".
By Ts'ai Feng-nien ^^ j^ ^
Reference to special Provincial
Statutes is also most desirable e.g.: —
Ao Tung Shcng Li Hsin Tsuan
"The Statutes (specially) applicable
"to the province of Kwangtung".
By Huang En-t'ung ^ yg fl^
Pyima facie a
work of import.
Many editions are
procurable.
A useful work, not
easily procurable.
There is a good
edition circa 1859.
An old work —
circa 1846 — but
other publications
of the kind are
procurable.
620
LIST OF CHINESE WORKS (CONTD.)
TITLE ETC.
REMARKS
R ULING AND EXP LAN A TOR Y
CASES: —
Hsing An Hid Lan ^J ^ ^ ^
"Collection of Ruling Cases
"decided by the Judiciary Board".
(Published by Authority).
By Pao Shu-ytin ^^
ttt
Hsing Pu Pi Chao flij ^ j;fe {[^
"Rulings of the Judiciary Board".
By Hsii Lien ^-
Reference to special Provincial
decisions is also most important
Ao Tung ClCeng An Clin Pien ^
"A compilation of Kwangtung
"Leading Cases".
By Chu Yun ^ \%
An essentially
important and
standard work ,
of which various
editions are pro-
curable.
An old work —
circa 1834 — but
is important and
instructive. Fairly
easily procurable.
An old work —
circa 1828 — but
other publications
of the kind are
procurable.
LIST OF CHINESE WORKS (CONTD
.) 621
TITLE ETC.
REMARKS
CIRCULARS, ETC: —
Sliuo Tie It Lei Pien |§^ ift^ ^ |i§
"Circulars Classified".
By Tai Tun-yiian ^^
TC
TzTi Chih Hsin Shu ^ '/p ilf ^
"A Key to Correct Administration"
Clin Fen Tsc Li T'u Yao ^ ^
n ^1 H S
"A synopsis of the Legal
"Punishments".
By Ts'ai Feng-nien ^ ^ ^
A vade-mecum
for magistrates. An
instructive work :
old — circa 1835
— but not out-of-
date. Fairly easily
procurable.
This work might
also be entitled
'Straight Tips to
'Officials'. It is im-
portant and valu-
able for reference.
There are many
editions, and it is
easily procurable.
A standard work
— circa i860 —
in tabular form.
In addition to a perusal of works such as the
above, the Ching Pao ^ ^g or "Peking Gazette"
should be constantly studied.
INDEX
Abduction, 372 — 381
'abduct is worse than to kill', to; phrase explained,373
complete, offence when, 372
force, effect of using, 372
forcible, phrase for, 372
foreigner concerned, application of law where, 380
ignorance of fact, no excuse, 374
intention, honourable, no excuse, 373
joint, 377—381
accessories, treatment of, 378
mitigation, considerations for, 379
mitigation, considerations for, 376
regard, woman no claims to, 376
instances of, 376
intimacy, question of, 377
return of woman and delivery up to
justice, 376, 380
principal and accessory, distinctions
between, 380
numbers engaged, points as to, 377
penalty for, 372
right, in a measure a, no excuse, 374
slave of a relation, abducting, 374
do. of an outsider, do. , 374
624
Abduction [contd.)
variations in offence, 372
wife, abducting a former, 374
Absence of malice, 4.1
procedure where, 41
Acts of Grace, 115 — 131
what and when, 1 1 5
effect of,
at what period efficacious, 117
branding, when to be inflicted, or renewed,
or removed, 129 — 130
capital cases commuted to fine , amount of
latter, 118
principal pardoned under, effect on
accessories, 118
offences excepted from operation,
differ with the Act, 1 1 8
list of, 124 — 129
offences excused,
list of, 120 — 122
offences excused after bambooing,
list of, 122 — 124
Adoption {v. Parent and CJiild)
Adultery, 369—370
consent of husband, effect of, 369
mourning, during a period of, 370
officials, by, 370
penalties for, 369
virtue of Chinese women, 370
Advowsons, sg8 — 600
patronage, right of, 599
subsequent benefactions, effect of, upon original
grant, 600
Affray, 454—459
significance of the term, 454
fire-arms, use of, in, 458
625
Affray {contd.)
abuse, after, 459
hazard, at, 458
self-defence, in, 458
killing in, 454
aggravation, considerations for, 456 — 457
family fight, questions arising in a, 458
mitigation, considerations for, 457
participation, what may constitute active, 456
relationship, effect of, 458
responsibility, apportionment of, 455 — 456
in premeditated fatal affrays, 455
in unpremeditated do. ,455
Age, 98 — 103
mode of reckoning, 102 — 103
consideration, special, in favour of aged
offender, 103
Aged offenders, ^8 — pp
consideration shown, 98
reason for, 99
a pettifogger sent to the hulks, 99
Juvenile offenders, gg — 102
consideration shown, 99 — lOO
extends to capital penalties, 100
rule herein that of common sense, 10 1
compulsion, effect of, loi
lad a ne'er-do-well, loi
branding not usually employed, 100
special treatment in and around Peking, 100
where inflicted, 100
Aged offenders (v. Age)
Apathy of Chinese in presence of crime^
Intro, p. LVii
Appeal, 21
Throne, right of petitioning, 21
when, 21
c. E. G. 40
626
Appeal [contd.)
'unjustly', meaning of, 2i
Arms and Ammunition, making, possessing, and
trafficking in, 476 — 479
distinctions regarding, 476 — 477
fire-arms, concerning, 476
cannon, making and possessing, 477
Manchus, special treatment accorded, 478
wild beasts, for protection against; special
treatment, 478
gunpowder, penalty for making, 478
selling, penalty for, 479
military equipment, articles of; making and
possessing, 479
Arson, 442 — 448.
accidental conflagration, 445 — 448
another offence, during commission of, 445
larceny for instance, 445
another offence, resultant upon, 446
pure and simple, in case of accident, 447
monuments, setting fire to, 447
own house, do. , 447
special liability, in case of, 447
junk, setting fire to, 448
attempted, 448
intent to attempt may be inferred, 448
considerations regarding, 442
extinction of fire, neighbours assist at ; penalty
when, 444
injury, effect of resulting, 444
intentional, 442
intent, how gauged, 442
loss of life, effect of resulting, 444
object set fire to, distinctions regarding, 442 — 443
crops, standing ; setting fire to, 443
haystacks or barns, do. , 443
INDEX 627
Arson {contd.)
own house, setting fire to, 442
public buildings, do. , 443
stores, setting fire to, 443
do. , military, do. , 443
scope of offence, 442
Artificial Relationships, 202 — 216
examples of, 202 — 203
(v. Master and Pupil; Master and Servant; etc.)
Assault, 346—355
considerations concerning, 347
definitions regarding, 348
essentials for, 346
scope of, 346
aggravated assaults, 349 — 352
fatal, 350
intent to merely kill, with, 350
do. murder, with, 351
privileged locality, within a, 351
serious bodily harm, causing, 349
common assault, definition and explanation
of, 348
'disable', 'disfigure', 'maim'; significance
of. 332—333
distinctions regarding, 352 — 353
relationship, influence of, 354—355
principal assaults into which entering, list
of, 354
officials, assaults on, 355
privilege, persons of; assaults on, 354
time, limit of, 347 — 348
variations in, etc., 347 — 348
weapons, importance of, 352
distinctions regarding, 352
Atitunm Assize (v. Revision)
628 INDEX
Barratry etc., 512 — 513
discouraged, is, 512
information, drawing up an untruthful, 512
maintenance, and ; case of, 513
Barristers, non-existence of, Intro. pp. l viii, lx
Bigamy, 560 — 562
absence of husband, effect of, 561
presumption of death, 562
family succession, with a view to, 560
wife runs away and deliberately marries
again, 560 — 561
where wife has been beguiled away, 561
or marries because she is afraid to go back, 561
or is married off by her seducer, 561
Breach of Trust, 424 — 426
lenient treatment of, as between private
persons, 424 — 425
examples and cases, 424 — 425
theft, distinction between and, 424
(v. also Embezzlement)
Brigandage (v. Larceny)
Brothers, 200 — 202
distinctions, 200
sons of same mother by different fathers, 202
killing a younger brother, 200
extenuating circumstances, 201
Burglary, etc., 440 — 442
non-existence of the offence, 440
breaking and entering, construction of points
as to, 441
dependent on whether or not an offence was
committed, 441
entry, the, as a question of aggravation, 441
Case, manner of considering a, ii — 13
circumstances, how considered, 1 1
circonstances attemiantes, 13
629
Case, manner of considering a [contd.)
judge, duty of, 12
leading case, definition and explanation of, 12
lower Court, duty of, 13
no provision exactly applying, 12
no provision in Code, 12
points considered, 1 1
Supreme Court, duty of, 13
Censorate (v. Judiciary Board)
Cheating and swindling, 435 — 438
cheating, treatment of, 435—436
special do. at Peking, 436
distinction between, 435
swindling, examples of, 437 — 438
do. , treatment of, 437
Christianity (v. Heresy)
Circonstances attenuantes, 86 — 92
when allowed, 86
examples, 87
(v. Case, manner of considering a ; Commutation ;
Delivery up to justice ; etc.)
Circulars of Judiciary Board {v. Revision — Generally)
Clan fights, 459 — 462
South China, prevalent in, 459
treatment of, 460
instance of, 461
what constitutes a, 460
Clan SYSTEM^ Intro, p. lv
Codification, process of, Intro, pp. xl — xli
Kao Tsu of the T'angs, system of, XLI
Li Kuei, system of, XL
Shih-Huang-ti, do. , XL
Shun, do. , XL
Yung Lo, do. , XLI
Coinage offences, 482 — 484
alloying a base with a precious metal, 483
630
Coinage offences [contd.)
casting iron, leaden, tin, or zinc cash, 483
circulation of bad coin, 484
clipping or filing copper cash, 483
counterfeiting copper cash, 482
manufacturing dollars, 482
do. sycee, 482
preparations, effect of making, 483
mould, making a, 483
washing a base with a precious metal, 483
Commerce, and offences against, 541 — 557
conduct of, 542
discipline, is under, 542
but is not unduly fettered, 542
'free trade', Chinese understanding of, 542
local Authorities, powers of; touching, 541
law concerning is meagre, 541
local regulations, 543
(v. Commercial gambling I Licensed brokers, etc.; Stitugg-
ling; Trade combinations, etc.; Usury and Debt; etc. etc.)
Commercial gambling, 547
buying and selling for the account, 547
corn exchanges, establishment of, 547
paying differences, 547
Commission of another offence after sentence pronounced
{v. Several offences, comviission of)
Commutation, 83 — 131
reasons for, 83- — 84
effect of, ordinarily, 85
very varied, 85
accidental homicide or injury, 85
extenuating circumstances, 86
several statutes may be pleaded in, 86
Special commutation in homicide, gi — p2
where offender dies in prison before case
settled, 91
631
Commutation {contd.)
(v. also Acts of Grace; Age; Cir Constances
atteniiantes ; Delivery up to Justice; Lunacy;
Mitigation; Physical disability ; Privilege, etc.; Sole
Representative ; Women)
Complaints {v. Informations, etc.)
Conflict of Chinese and Tartar Laws, Intro.
pp. L — LI
a difificulty, L
and not an imaginary one, LI
Confrontation of offenders, 41 — 44
Parties apprehended etc. within different juris-
dictions, ^i — 42
procedure concerning, 41
distance, efifect of, 42
Party still at large, ^2 — /j.4.
procedure concerning, 42 — 43
in capital cases, 44
in joint larceny, 44
Consistency of Chinese Law, Intro, p. lxiii
Contempt of Court, 493 — 496
comprehensiveness of the offence, 496
status, effect of high, 495
varieties of, 493 — 495
cJiia chih, significance of the term, 493
examples of, 494
wet chih, significance of the term, 493
examples of, 493
Copyright, 548 — 549
chiefly for official publications, 548
instance of, 548
Corners (v. Trade Combinations, etc.)
Courts, system of, 7 — 9
concurrent civil and criminal jurisdiction, 8
exception to, 9
gradation, gradual, 8
632
Courts, system of [contd.)
Judiciary Board (also q. v.), 8
resembles Court of Appeal, 8
lowest Court to be first addressed, 7
magistrates, number of, 9
revision, 8
Cremation (v. Dead, offences against the)
Criminal La w,re vie w of the, Intro. pp. lxi — lxiii
commentaries on, LXII
good features of, LXll
importance of, relative, LXII
Custodian official, definition of, 13s
Dead, offences against the, 534 — 540
cremation, illegality of, 540
Miaotzu, exists among the, 540
desecrating ancestral tablets, 540
of another person, 540
desecration of coffins, graves, and ceme-
teries, 536—540
breaking open an unburied coffin, 536
what constitutes 'breaking open', 538
do. 'seeing the corpse', 538
breaking open a tomb, 538
essentials of the offence, 538
ancient worthies, in case of, 538
ancestral cemetery, do. , 538
turning such into cultivation, 539
barrow, in case of an old, 539
Imperial tombs, in case of, 53^
mitigation, reasons for, 539
digging in another's cemetery, 536
opening a coffin after it has once been closed, 537
relationship, effect of, 537, 538
making away with corpses, 535
essentials of the offence, 535
examples of do. , 535
633
Dead, offences against the {contd.)
ordinarily, 535
principals and accomplices to another offence,
in case of, 536
relations, in case of, 536
post-mortems, 5 34
Debt (v. Usury and Debt)
Delirium, p6 — py
effect of, 97
usually no excuse, 97
exceptions, 97
Delivery up to Justice, 88 — 91
mitigation, a consideration for, when, 88
when to be made, 90
effect of informing accessory causing arrest of
principal, 91
effect of injury to life or limb, as touching
delivery, 88 — 89
do. irreparable injury, as touching de-
livery, 90
do. parental relation, do. 91
do. relations delivering offender, 89
Desire to reconcile Law and Justice, Intro.
p. XLVIII
Detectives, Private (v. Police, etc.)
Dijferent jurisdictions, parties apprehended within
(v. Confrontation of offenders)
Disposition of property mortis causa, 575 — 586
paternal property, how divisible, 575, 578
daughters, sons preferred to, 580
do. , dowry of, 583
joint-heir, death of; effect of, 578
junior and senior, formality between, 578
principal wife, right of, 578
secondary do. , do. , 578
Distinctions, desire to draw, Intro, p. xlix
634
Divorce (v. Husband and Wife)
Dykes ^ cutting private, 48 g
Embezzlement, 423, 424 — 429
Government funds, of; distinctions regarding
(infra), 426
lenient treatment of, as between private persons, 424
examples and cases, 424 — 426
official employes, by, 426
theft, to be distinguished from, 423
do. , distinction between and, 424
Appropriation etc. of Government funds, etc., 426 — ^2p
distinctions regarding, 426
objects, official; appropriation by officials of, 429
penalties for, scale of, 427
refunded, where loss is, 427
severe treatment for uncontrollable losses, 428
instances of, 428
Entail, 57^
Escaping from place of punishment, 513 — 514
prison, from, 513 .
collective disturbance, 513
release of other prisoners, and, 513
transportation, from, 513
penalty for, varies with number of days
absence, 513
mitigated capital penalty, where offender is
serving a, 514
term starts anew, 514
Eunuchs, Imperial (v. Privilege)
Evidence, 15 — 17
disabilities to give, 16
enquiry to check, 16
not a post-mortem, 16
judge, duty of, in extracting, 16
may reject, 16
prisoner may give, 16
635
Evidence [contd.)
prisoner, illiterate, deposition of, i6
Examinations, legal, Intro, p. lxi
Excusable homicide (v. Homicide)
Execution of Sentence (v. Sentence)
Extortion, 431 — 433
treatment of, 431
larceny, in case of, 431
officials, do. , 432
relationship, do. , 431
'squeezing', in cases of, 433
False accusation, 500 — 512
capital offence, charging a, 503
'charge falsely', to; phrase for and meaning
of, 502
convicts, charges by, 5 1 1
exaggeration, effect of, 507, 509
is the custom not the exception, 5 1 1
judicial officers, charges against, 510
do. , do. by, 510
member ofaccused's family dies in consequence, 504
do. do. dies en route to
place of punishment, false charge that a, 505
nicety of law concerning, 501
petty offence, charging a, 502
poverty of accuser, effect of, 504
several charges, case of, 506 — 509
where graver are false, 507
do. do. true, 506
calculation of penalty herein, 508
reason for rule, 509
several persons charged, case of, 509
'transfer sentence', to ; phrase for and meaning
of, 502
transportable offence of mild nature, charging
a, 502
636
False accusation [contd.)
transportable ofifence of grave nature, charging
a, 503
False pretences, obtaining property
UNDER, 429 — 430
treatment of, 429
public property, in case of, 429
relationship, in case of, 429
Fathers and mothers-in-law, etc., 196 — 198
daughter-in-law hurts a father-in-law, 196
do. kills a mother-in-law, 196
under conditions of extenuation, 197
father-in-law kills a son or daughter-in-law, 197 — 198
mother-in-law kills a daughter-in-law, 197
duration of the tie, 198.
Felonies, the Ten (v. Offences, division of)
Fines and Forfeitures (v. Punishment)
Fire-arms, effect of usitig (v. Homicide; Affray;
also incidental refer e7tces — Justifiable Jiomicide, etc.)
Forgery, 438 — 440
treatment of, 438
official documents, of, 438
do. seal or signet, of, 439
relationship, effect of, 440
'counterfeit', to; explanation of expression, 440
Fornication, 367 — 368
aggravated, instance of, 367
mourning, during, 368
officials, by, 368
penalties for, -^Gj
Fraud, 430—431
treatment of, 430
officials, in case of, 430
Fu Hsi, Intro, p. XXXIX; App. I.
existence of, question as to, App. I.
marriage, institutes, Intro, p. XXXIX ; App. I.
INDEX 637
Gaming, 562
meaning of, 562
penalty for, ordinarily, 562
friendly game, in case of a, 562
gaming house, keeping a, 562
Government funds, appropriation, etc., of (v.
Embezzlement)
Graduates (v. Privilege)
Guardianship of infants, 600 — 605
devolves upon next of kin, 600
unless unworthy, 603
when testamentary disposition to the contrary
will be upheld, 603
Han dynasty, the, Intro, p. xxxix
Hardened Offenders (v. Previous Conviction)
Heresy, 526 — 529
varieties of the offence, 526 — 527
ancient law, examples of the, 527
magicians etc., punishment for, 527
Christianity, provisions concerning, 527
recantation, mode of, 528
after a relapse, 528
Homicide, 221 — 345
extent of subject, 221
family, killing several of a, 225 — 229
distinctions herein between deliberate homicide
and homicide in resisting arrest, 228
essentials for application of rule, 226
position of respective parties, 226
both parties on same footing, 227
offence of slain due to slayer, 227
relations included, what, 229
fire-arms, effect of using, 234 — 236
objections to, 234
when mitigation allowed, 234
mode of kiUing, effect of, 223
638
Homicide {contd.)
burying alive, etc., 224
relationship, effect of, 222 — 223
sJia, to kill; significance of, 221
time, limit of, 229^234
exceeded, 232
relationship, effect of, 232
variations in, 229 — 232
injury directly causes death, 230
do. indirectly do. , 231
Excusable — Accidental, 260 — 28^
classes of, distinctions between, and examples of, 260
bricks, throwing, where people frequent, 276,
277, 278, 280
challenge to fight, 271
chance-killing, 280
fight, killing in course of a, 284, 285
fire-arms, discharging, where people fre-
quent, 275, 278
huntsmen and beaters. Imperial ; homicide
by, 268
lethal weapons, responsibility incurred by
carrying, 268
misadventure, kiUing by, 281, 282
poisoning, special rigour in cases of, 269
pure accident, seemingly; how treated, 270
remote cause of death, being a, 272
blow diverted from one to another, 272
meritorious act, mishap occurs during
performance of a, 272
serious effects, where circumstances are
excusable, 273
slipping and injuring bystanders, 283
sportsmen, accidental homicide by, 267.
struggling, effect of, 271
wild beasts, shooting, in frequented places, 279
639
Homicide [contd.)
penalties are formal, 274
In self-defence, 286 — 28']
lethal weapons, killing in resisting attack with, 286
rowdy, killing a molesting, 286
unarmed, killing where both parties are, 286
Justifiable, 236 — 2§g
arson in bodies, resisting; homicide during, 240
child kills parent's murderer, 246
do. would-be murderer, 246
connection between cause and effect to be
direct, 247
danger, parent not in, 249
disarmed, assailant previously, 250
latitude allowed son, 248
relation, assailant is a, 250
weak, assailant is physically or mentally, 250
constable kills offender who resists arrest, 259
desecrator of grave, killing a, 241
husband kills adulterous wife, 251
husband kills adulterer, 251
essentials for justification, 251
'on the spot and at the time', phrase
explained, 252
assistance of relatives herein, 252
party to dishonour, husband a; effect of, 254
husband kills wife who has procured daughter's
dishonour, 255
or mother-in-law who procures his wife's dis-
honour, 255
husband kills wife's lover, 255
do. poisons outsider in endeavour to kill
his wife's lover, 256
impropriety, homicide in resisting, 241
rape, in resisting, 242
unnatural offence, in resisting an, 242
640
Homicide {contd.)
larceny, homicide in opposing, 236
general rule herein, 239
robbery from a field by day, 237
do. do. by night, 238
do. a house by day, 236
do. do. by night, 236
do. a yard, 237
robber in self-defence, killing a, 238
what constitutes self-defence, 238 — 239
master stabs attempted ravisher of pupil, 258
outsiders kill the attempted ravisher, 258
master kills a too affectionate servant, 259
parent kills child accidentally, 244
do. do. deliberately, 243
do. outsider in protection of child's
Hfe, 244—245
do. outsider in protection of child's pro-
priety, 245 — 246
relative, homicide in defence of, 256
in defence of propriety of relative, 257
relationship must be near, 257
but if killing be indirect, remote relationship
will partially justify, 258
servant kills in defence of master's house and
property,' 259
servant kills mistress' lover per err or em, 259.
smuggler in flagrante delicto, killing a, 240
State or public welfare, killing an offender against
the, 241
trespasser, killing a, 239
limitations, 240
lunatics, rules extend to, 240
outsider does the killing, 240
wife kills in defence of husband, 256
Manslanghter, 288 — 2^2
641
Homicide [contd.)
deprivation of necessaries, arising from, 291
drowning cases resulting from wrestling, general
rule in, 290
execution, friendly assistance in avoidance of;
effect of, 292
indirect causes, arising from, 288
medicine, unskilful practice of; arising from, 291
Murder, 2^2 — 303
another offence, when connected with commission
of, 293
arson, resulting from, 299
burying alive, as a mode of, 300
bystander, offender kills a, 294
children, murder of, 302
rape or robbery, with a view to, 302
children of intended victim, offender kills, 295
deliberately planned, 294, 295
do. , attempted, 295
fire-arms in a fray, effect of using, 295
immorality, when connected with, 297
maim or quarter for magical purposes, with a
view to, 298
plunder, with a view to, 296
principal and accessories, distinction between, 293
do. , who held to be, 293
relationship, effect of, 300
design, mere, to kill parents or grandparents, 300
do., do., senior relation within degrees
of mourning, 300
striking blow in accomplishmient of design, 300
killing a senior, treatment of junior for, 300
killing a junior, treatment of senior for, 301
dissolution of tie, after, 301
sudden intent, upon, 294
time, effect of, in deliberate murder, 295
C. E. G. 41
642
Homicide [contd.)
trouble to others, with a view to cause, 302
venomous animals, wilfully occasioning bite of, 299
Suicide, joj — Jip
agreement to commit, 304
parent, with a, 305
profit, with a view to, 305
sham, but actual in effect, 305
assistance at, 307
approval amounts to, 308
brother, elder; assisting, 308
husband, wife assists, 309
parent, assisting, 308
wife, husband assists, 310
extenuating circumstances of little weight
where relations are concerned, 309
forcing a person to kill himself, 317
essentials for application of rule, 317
construction of rule, 317
extenuating circumstances, effect of, 318
separate consideration, a, 317
locality, effect of, 318
Imperial City, court of; suicide within, 319
do. , moat of; do. , 318
Imperial Palace, court of; suicide within, 319
do. , lake of; do. , 318
nicety of the offence, 304
prevention of, killing one who attempts, 310
religion, sometimes classed as an offence against, 304
responsibility for, indirect, 311
acts, resulting from, 313
impropriety for example, 314
hesitation of suicide, effect of, 315
discreditable reflections, resulting from, 316
slander, resulting from, 315
threats, resulting from, 311
643
Homicide [contd.)
worrying to death, 312
Indirect responsibility for deatJi, 320 — j^j
varieties of, 320
what, 320
responsibility of junior relations
how arising, in general, 320
accidental, where parent's death purely, 336
adoption, in cases of, 340
capital penalty, arising from liability to, 322
curious example of, 339
encouragement, senior's previous; effect of, 329
execution of parent, arising from, 337
filial behaviour, generally; a subject for
mitigation, 329
indirect circumstances, arising from, 330 — 333
where the suicide is really principal, 332
knowledge of parents as to commission of junior's
offence, 323
distinctions regarding, 323
mitigation, may cause much, 324
rule, general, regarding, 324 — 325
lechery, arising from, 322, 323, 324, 325, 326
where aggravated by commission of a capital
offence, 326
misconduct, daughter's; arising from, 326
adultery, in cases of, 327
where paramour murders husband, 327
where adulteress reforms, 328
murder, arising from, 322
peculiar gravity, arising from case of, 335
questionable instances of, 333 — 334
robbery, arising from, 322, 323, 324, 325, 326
where aggravated by commission of a capital
offence, 326
termagant behaviour of wife, arising from, 334
644
Homicide [contd.)
training, senior's previous; effect of, 329, 330
trivial offences, arising from, 337 — 339
responsibility of others
adultery, arising from, 342
false evidence, do. , 344
impropriety, do. , 343
slander, do. , 342
unfair competition, arising from fatal affray due
to, 344
'Hundred Surnames', the, App. I
fabled to have been instituted by Fu Hsi,
App. I
Husband and Wife, 171
wives and concubines, distinction between and
position of, 171
Marriage, contraction of, 1^2 — 182
essentials to validity, 172
consent and ceremonial, 172 — 177
consent- of relatives to be written, 173
details concerning, 173 — 174
betrothal to be regular, 174
dowry, 175-
fraud, effect of, 175
introductory enquiries, 172 — 173
marriage articles, recognition of, 172
do. lines, must be given to bride-
groom, 172 — 174
mourning, period of; effect of, 175 — 176
wedding gifts, receipt of, 174
position of parties, 177 — 182
betrothed girl and deceased bridegroom's
brother, union between, 180
betrothed girl, marriage of, after lapse of
time, 180
deceased brother's wife, union with, 179
INDEX 645
Husband and Wife {contd.)
female fugitive from justice, marriage of, 182
mother and daughter, father and son, union
between, 179
near relative, union with, 178
ofiicials, marriage of, 179 — 180
not within jurisdiction, 179
nor with a concubine, 179
nor with an actress, etc., 180
priests, marriage of, 182
widows, essentials to marriage of, 180 — 182
consent of parents, 180
lapse of decent interval, 181
not an estimable action, 182
breach of promise of marriage, 173
responsibility where marriage unlawful, 176
Dissolution of marriage, 182 — 186
divorce, seven valid grounds for, 184
disobedience, 184
infidelity, 184 — 185
talkativeness, 184
equitable exceptions to rule, 185
honour, sacrificing wife's, 183
impotency, effect of, 182- — 183
sale of wife, 183
divorced wife desires return to hus-
band, 185 — 186
Ejfect of the relationship, 186 — jg6
absence from wife, effect of, 190
beating a husband, 192
wives beat each other, 192^ — 193
brutal treatment of wives, case of, 190 — 192
correction of wife, 189 — 190
elopement of wife, 193 — 194
killing a husband, 192, 194 — 195
in adultery, by paramour, 194 — 195
646
Husband and Wife {contd.)
effect of husband's consent or dis-
sent, 194 — 195
when capital penalty attaches, 195
killing a wife, 186
circonstances atteniiantes, 186 — 18']
where wife undutiful, 187
in case of adultery, 187 — 189
killing the adulterer, 187 — 188
position of other relatives herein, r88
liability, mutual, for offences, 195 — 196
rupturing a wife, 190
sacrificing honour of wife, 190
sale of wife, 189
striking a husband's relations, 193
Illegitimate children (v. Parent and Child)
Illicitly quitting the country, 5^^ — S5o
offence against trade, why an, 550
penalty for, 550
Imperial Family (v. Privilege)
Imprisonment (v. Punisliment)
Improper execution (v. Punishment)
Incest, 370 — 371
penalties for, 370 — 371
relationships forbidden, what, 370
Indecent assault, 366 — 367
classified as attempted rape {q. v.), 366
penalty for, 367
varies with gravity of assault, 367
Inequality of action of Courts, 2q — jo
contrasted cases, 29 — 30
Informations etc., 9 — 11
anonymous, 10
disabilities for laying, 10
refusal to receive, 10
where lying, 9
647
Insubordination (v. Officials, offences by)
Intramural interment, /fSg — ^.go
Investigations, Provincial (v. Sole Representative)
Jailers (v. Punishment)
Judge, position of, in criminal matters,
Intro, p. LXiii
Judicial Committee of Criminal Revision (v. Judiciary
Board)
Judiciary Board, 21 — 29
conjoint action with Censorate and Judicial
Committee, 22
jurisdiction of, 22
revision, duties as to (v. Revision), 22
Justice, offences against, 491 — 520
desire to draw distinctions, often exhibit the, 492
flexibihty of considerations concerning, 491
severe treatment of, 492
State, closely resemble offences against the, 491
(v. specific offences — Contempt of Court; Perjury ;
Rescue; etc. etc.)
Justifiable homicide (v. Homicide)
Juvenile offenders (v. Age)
Kidnapping, 382 — 383
abduction, distinguished from, 382
considerations in, 382
free person, kidnapping a, 383
harbourers, treatment of, 383
purchasers, do. , 383
slave, kidnapping a, 383
Land Tenure, etc., 571—575
original right of property, where residing, 571
tenure, kinds of, 571
cultivation, by, 571
how acquired, 572
military service, by, 571
State grant, by, 571
648
Land Tenure [contd.)
accession, rights by, 574
alluvion, 574
reclaimed washes, acquisition of, 574
Alienation inter vivos
lease, manner of effecting a, 572
deposit, 572
taxes, by whom payable, 572
underlease, 572
sale, manner of effecting a, 573
mutual undertaking concerning, 573
Larceny, 384 — 422
considerations, peculiar, touching, 384
distinctions regarding, 385
gravity of offence, determination of, 391 — 395
aggravation, under circumstances of, 395
capital, when, 394
conditions, under special, 395
transportable, when, 394
escaping from place of punishment and again
offending, 394
value, generally depends upon, 391
do. , assessment of, 392
owner, by, not to be accepted unless
evidenced, 395
several offenders, in case of, 393
do. victims, do. , 393
objects, of certain, 411 — 417
crops, of, 416
distinctions regarding, 416
timber and brushwood, of, 416
domestic animals, of, 417
distinctions regarding, 417
Imperial edict or seal, of an, 412
military weapons and accoutrements, of, 414
distinctions regarding, 414
649
Larceny [contd)
persons, by certain, 407 — 411
carriers, by, 410
breach of trust, not a, 410
"making off with", what is, 410
presence of owner of goods, importance
of, 410
innkeepers, by, 411
treatment of, 41 1
relations, by, 407
distinctions regarding, 408
mitigation, a subject for, 407
reason for, 407
outsider also concerned, where, 408
penalties, table of, 409
places, from certain, 411 — 417
Imperial Palace, from, 411
public ofidces or residences, from, 412
distinctions regarding, 412
old registers or documents, larceny of, how
considered, 414
wrecks, from, 415
wrecking, instances of, 415
do. , failure to report, 416
receivers of stolen property, 417 — 419
carrier, buying goods from a, 418
harbouring a robber, 418
pawnbrokers, 419
stolen property found in pawn, position of
pawnbroker where, 419
persistence in offence, treatment of, 419
position of, compared with ordinary robber or
thief, 417
rigorous treatment of, 418
reparation, effect of, 420
resisting arrest, violence in, 421
650
Larceny [contd.)
distinctions regarding, 421
resisting pursuit, violence in, 420
distinctions regarding, 420
robbery and theft distinguished, 385
do. in bodies, 400 — 404
beggars, treatment accorded, 403
brigandage, 401
general rule regarding, 400
dependent on numbers and equipment, 401
special treatment regarding, 401
to what provinces applicable, 402
Shansi, special treatment in, 403
tramps, treatment accorded, 403
do. and murder, 400
when, 400
do. during riot, 404 — 406
instance of, 404 — 406
when, 404
do. with violence, 396 — 400
armed band, what constitutes an, 397
arms, what are considered, 397
circonstances attenuantes, when allowed, 399
essentials for offence, 396
homicide, effect of resulting, 399
injury, do. do. , 399
house, from a, 398
scope of offence, 397
stupifying victim previous to offence, effect
of, 398
when, 396
scope of the offence, 384
substitution, treatment of, 406 — 407
when, 406
taking, the, 386 — 391
asportation, 389 — 391
651
Larceny {contd.)
another's plunder, taking, 391
nature of object taken, distinctions as
to, 390
unnecessary, when, 389
extenuation, under circumstances of, 386 — 389
which are occasionally utter drivel, 385
in view of strained reasoning, 386 — 388
justification or excuse, must be without, 386
effect of, 386
tsei, significance of the word, 385
Large, party at (v. Confrontation of offenders)
'Larking', discouragement of, Intro, p. lxi'x
Levying tolls, 5^7
interference with trade, an, 547
Ll, meaning of, Intro, pp. XLIII — XLVII
quotations illustrating, XLIV — XLVI
relation to Lii, XLVI
analogy in English Law, XLVII
Libel and Slander, 500 — 501
intangibility of the offences, 501
in English legal sense are non-existent, 501
to post up libellous placards, for example, 501
(v. also False accusation)
Licensed brokers, etc., 544 — 545
commission agents, mode of selection and
duties of, 544
licensed brokers, mode of selection and
duties of, 544
penalties regulating, 544
errors in valuation or assessment, 544 — 545
ship-brokers, mode of selection and duties
of, 544
Literature, legal, Intro, p. lx
Lu, meaning of, Intro, pp. XLIII — XLVII
quotations illustrating, XLIV — XLVI
652
Lu, MEANING OF [coutd.)
relation to Li, XLVI
analogy in English Law, XLVII
Lunacy, 92 — 96
Acts of Grace and Gaol Delivery, application
of to, 96
limit of time for recurrence of malady, 93, 94
relatives, duties in regard of lunatics, 92
Ejfect of,
consideration shown, 93
penalty affected, not sentence, 95
relationship, how affecting, 94
when malady transitory, 94
deliberately slaying parents or grand
parents, 96
punishment where lunatic already dead, 96
Magistrates, 132 — 135
complaints and informations, liability re, 132
penalty, correct assessment of, liability re, 133
imprisonment, responsibilities touching, 1 34 — 1 3 5
escape, liability for, 135
Mahomedan La ws, ap plica tion of, Intro, p. lii
Maintenance (v. Barratry etc.)
Manslaiigliter (v. Homicide)
Marriage (v. Husband and Wife)
Marriage, Law of, evolution of, App. I
Mar tialLa w, non-existence of, Intropp.Liii—L v
Master and Pupil, 203 — 207
nature and effect, of the relation, 203
correction, powers of, 203 — 205
duration of tie, 205 — 206
status of pupil, consideration re, 205
leading a charge astray, 205
Priest and disciple, relationship between, 206 — 207
how entered upon, 206
effect of, 206 — 207
653
Master and Servant and Slaves, 207 — 215
general relative position of, 207
Master and Servant, 20'j — 210
essentials for relation, 207 — 208
effect of relation, 208 — 210
improper behaviour by master, 208
offences by servant, 209
Master and Slaves, 210 — 2/5
origin of slavery, 210
Manchu princes, power of, 211 — 212
parents, sale by, 210 — 211
Effect of relation
charge against a master, bringing, 213 — 214
killing a master, accidentally, 212
do. , attempted, 212
do. , deliberately, 212
killing a master's relations, 212
do. a slave, 213
do. do. of a relation, 213
do. a freedman, 213
striking a slave of a relation, 213
wife of slave, position of, 213
duration of tie, 214
Ming dynasty, the, Intro, p. xxxix
Mining Laws, 548
prospecting for gold without license, penalty
for, 548
distinctions regarding, 548
China Proper, penalty in, 548
fipr gold washing in Shansi, 548
New Territories, penalty in the, 548
Mitigation, 83—131
sources of, and reasons for, 83
{v. also Acts of Grace; Age; Commutation ; etc. etc.)
Morality, Law of, 358 — 359
fine distinctions in, 359
654
Morality, Law of {contd.)
tablets awarded virtuous women, 358
(v. Abduction; Rape; etc. etc.)
Morality and Health, offences against,
558-567
important considerations touching, 559
bigamy, gaming, poisons, and the stage, for
example, 559
actor, status of an, 559
poisons, surveillance of, 559
moral suasion preferred to physical force, 558
law accordingly not too strictly construed, 558
gaming for example, 559
reasoning concerning is not intricate, 559
(v. Bigamy ; Gaining; Poisotis ; Theatrical offences;
etc. etc.)
Mourning, degrees of (v. Relationship )
Murder {v. Homicide)
Natural Relationships, 144. — 202
(v. Husband and Wife; Parent and Child; etc.)
Nobility (v. Privilege)
Notaries, Intro, p. Lix
Offences, division of, 2ig — 220
Felonies, the Ten, 219
Offenders, classes of, 2ig
Official Privilege {v. Privilege)
Officials, offences by, 485 — 488
appointing subordinates without authority, 485
bribery, 487 — 488
agreement to accept a bribe, 488
what constitutes an, 487
impressment for private purposes, 488
insubordination, 486 — 487
leaving a post without leave, 486
expectant and minor officials, treatment
herein, 486
655
Officials, offences by {contd.)
striking a superior officer, 486
mitigation, under circumstances of, 486
recommending undeserved promotion, 485
zeal, excess of, 487
Parent and Child, 153 — 171
general relative position of, 153
Position of parent
correction, parents' powers of, 155
to be reasonably exercised, 155
where unreasonable, 156
may be exercised by another, 156
plea of provocation, 156
Court, children brought before, 153
disobedience, examples and effect of, 154
mitigation allowed, examples, 155
sale of child, how and when permitted, 157
transportation, power of, 153
Position of child
charge against parents, effect of bring-
ing, 163—164
exceptions to general rule, 164
corporal injury to parents, effect of causing, 162
striking parents, effect of, 162
death of parents, effect of causing, 158 — 162
where direct and intentional, 158
where direct but accidental, 159 — 162
curious and inconsistent cases, 161 — 162
defence of parents, 165 — 166
rights and liabilities of son, 165
where relations are concerned, 165
maintenance of parents, 164—165
son practically liable in any case, 165
tie of consanguinity unbroken by remarriage of
mother, 166 — 168
continuing relationship of children, 167 — 168
656
Parent and Child [contd.)
Adoption, i68 — 770
how exercised, 168
head of clan, powers of, 169
effect of, 169 — 170
as regards adopted parents, 169
do. other relations, 169
Illegitimate children, lyo
position of, 170
abandoning, effect of, 171
killing, effect of, 170
Peace, offences against the, 449 — 462
constitutional view, discussed from the, 450
construction, questions concerning largely of, 450
local Authorities, powers of, touching, 449
resemblances to English Law, 449
special treatment for, 45 1
(v. specific offences — Affray ; Clan fights ; Riot; etc.)
Perfection, difficulties in attaining, Intro.
pp. XLVII — L
Perjury, 497 — 500
categories of, 497
false testimony to another's disadvantage, effect
of giving, 499
forgery and perjury combined, case of, 499 — 500
ordinary perjury in Court, essentials of, 497
differs from English legal definition, 497
mild treatment of, 498
varieties of, 498
screening an offender, 498
fee, for, 499
relationship, effect of, 499
Person, offences against the (v. specific offences—
Assault; Homicide; Rape; etc. etc.)
Personation, 433 — 435
forms of, 433
657
Personation {contd.)
offender, of an, 434
« explanation of, 435
officials, of, 433
aggravation, under circumstances of, 434
Physical disability, 97—98
distinctions in, 97
effect of, 97
rheumatism, bad attack of; effect of, 98
Piracy, 469 — 473
classification of offence, usual, 473
commerce with pirates, effect of, 471
buying plunder from pirates, 472
provisioning, 471
compulsion, effect of, 471
concessions regarding with a view to eradic-
ation, 472
excused, when, 473
pirates, varieties of, 469
do. , sea ; term for, 469
'real' pirate, what is a, 469
instances of, 470 — 471
severity of law regarding, 469
treatment for, 469
accessories, 469 — 470
principals, 469
Pleasure houses, 563
penalty for keeping ordinarily, 563
brothels, in case of, 563
music halls, do. , 563
Poisons, 566 — 567
adulteration, using for purposes of, 567
cultivating or preparing dangerous shrubs, 566
leaving poison about, 567
purchase of, 566
rearing dangerous animals, 566
c. E. G. 42
658
Poisons [contd.)
sale of, 566
supervision of, 566
Police etc., 135 — 140
detection and arrest, responsibilities re, 135
period for, 135
evil effect of system, 136
treatment, 136 — 137
Specific liabilities and rights, ij"] — ijg
bribe, effect of taking, 137
escape, connivance at, 137
actual assistance at, 137
wrong person, arrest of; penalty for, 137
offence and defence, right of, 138
killing a constable, effect of, 138
where coupled with resistance to arrest, 138
breaking a bone, a measure of gravity, 139
Private detectives, ijg
status etc. of, 139
Private salt watchers, ij^
status etc. of, 139
Tipaos and ward elders, ijg
status etc. of, 139
Political expediency, Intro, p. lviii
Postal offences, 481 — 482
Post Office, position of the, 481
official matter, delay in transmission of, 482
do. , destruction of, 482
do. , interception of, 482
appropriation of official envelopes, 482
private matter, transmitting; a favour, 481
do. , larceny of, 481
Post-mortems (v. Dead, offences against the)
Precedent, 13—15
clashing of, 14
determination of punishment in Edict not a, i 4
659
Precedent {contd.)
importance of, 13
reversed, 1 5
sentence, before circulation, not a, 15
Predominance of the La w, Intro, pp. lti — z viii
apathy of Chinese in presence of crime an
effect of, LVil
clan system not antagonistic to, LV
interference not tolerated, Liii
in the case of the military, for example, LIII
political expediency overrides law, LVIII
Prevention of Crime, 3 — 5
fair security for life and property in China, 5
parents and heads of families, duties in regard
of, 4
special bond for, 4
wardsmen and tipaos, duties in regard of, 4
wider practice than in England, 4
Previous conviction, 49 — 51
meaning of, 49
strict construction of, 49
Hardened offenders, /fg — 5/
general rule, 49
in capital cases, 50
in larceny, 50
special rule in Kwangtung, 5 1
Priest and Disciple (v. Master and Pupil)
Priests, offences by, 533 — 534
severe treatment of, 533
instance of, 533
Priests, privilege of (v. Privilege)
Principal and Accomplice, 31 — 40
law touching closely concerned with law
concerning a particular offence, 40
recognition of, in Chinese law, 31
responsibility, distribution of; general rule, 31
66o
Principal and accomplice, {contd.)
Specific instances
accessory brought in as principal, 38
do. in premeditated murder, 37
do. , severe treatment of, 36
bystander and one who lends moral countenance,
distinction between, 40
different statutes, effect of conviction under, 34
employe does the injury, 33
do. , essentials for position of, 34
eye-witness, treatment of, 39
fight with fatal issue , apportionment of
responsibility where, 35
hiring or inciting the commission of an offence, 34
household, members of; distribution of
responsibility among, 36
larceny and resisting arrest, 35
do. by several, 35
murder, uncontemplated or undesigned, 39
none responsible as principal, 35
originator of assault present directing and not
present directing, 32
parent's orders, effect of acting under, 36
planner withdraws at last moment, 34
poisoning by several, distribution of responsi-
bihty, 38
principal, none responsible as, 35
request of another, effect of joining on, 33
suicide at instance of another, effect of, 34
do. , assistance at, 38
Prisons (v. Punishment)
Private arrangement, 6 — 7
capital offence, touching, 7
not permissible, 7
penalty for, 6
power of Courts touching, 7
INDEX 66 1
Private justice, 5—6
Ch'ien Lung, remarks by Emperor j concerning, 6
limit of time, 6
not permissible, 5
special consideration, 6
Privilege, 108 — 115
grounds for, 108
wider meaning of, 108
Effect of, log
offence by privileged person, how treated, 109
Privileged Classes, log — 7/5
chief, 109 — 115
graduates, 1 14 — 1 1 5
favour shown, 114 — 115
Imperial Family, 109 — no
who included, 109
favour shown, iio
differential, lenient, and comprehen-
sive, 1 10
maintenance allowance stopped, 1 10
Imperial eunuchs, 1 10-^1 ii
treatment for, no — 11 1
nobility, 114
favour shown, 1 14
officials. III — 114
treatment for, in — 114
degradation, effect of, in
elevation of children, effect of, 113
retirement, effect of, 113
pubhc and private nature, offences of;
distinction, 112
priests, 115
not specially favoured, 115
Tartar Banner force, 114
favour shown members, 1 14
Privileged Classes (v. Privilege)
662
Procuration, 371
divorced wife, how considered, 371
treatment of, 371
Procuring abortion, 371 — 372
drugs, by use of; phrase for, 372
flooding, death from; do. , 372
obtaining noxious thing, penalty for, 371
penalty for, 371
Professional class, Intro, p. lviii
Profligacy in officials, 563
gaming, penalty for, 563
keeping a gaming house, penalty for, 563
spending a night in a music hall, penalty for, 563
Propagating immoral literature, 565
magistrates and officials, duties in prevention
of, 565
penalty for, 565
author or compiler, in case of, 565
if an official, 565
purchasers and readers, in case of, 565
vendors, in case of, 565
Property, offences against (v. specific offences —
Arson; Embezzlement ; Larceny; etc. etc.)
Protection of children, 381 — 382
detention of children, 382
discovery do. do. , treatment of on, 381
sale of children, 382
Public stores, etc., unlawful dealings
WITH, 479—481
cause of, usual, 479
officials, by, 480
issuing superior goods, 480
lending official goods for private purposes, 480
rations to Bannermen, dealings regard-
ing, 480 — 481
receiving inferior goods, 480
663
Punishment, 52 — 82
Ancient piinisJiment, 52 — 55
Chou and Han dynasties, penalties in time
of, 54
Li Li, Minister of Justice, commits suicide, 55
Shun, penalties in time of, 53
traditional instance of, 52
Yii visits frontier states, 54
Varieties of, SSS?
division into degrees, 56
Capital, 57 — 6j
decapitation and exposure of the head, 59
do. , simple, certain, 60
do. , do. , subject to revision, 61
may be forthwith carried out, 60
may be subsequent to death, 61
slicing to pieces and extinction of the
family, 57
artistic in a measure, 59
not extraordinarily inhuman, 58
subsequent to death, may be carried
out, 58
slicing to pieces, simple, 59
strangulation, certain, 62
a painful death, 62
do. subject to revision, 62
seldom carried out, 63
improper execution, 64
responsibility where, 64
in case of death, 54
self-execution, 63 — 64
special favour for High officials, 63
Yell's opinion concerning. Viceroy, 63
Other forms, 62 — 72
bamboo, forms of, described, 68 — 69
how to be inflicted, 69
664
Punishment [contd.)
branding, mode and purpose of, 71
cangue, described, 69 — 71
additional to transportation, 70
life, cangue for, 71
light punishment, not a, 70
fetters, perpetual, described, 71
fines and forfeitures, yG — 78
fines, described, ^6 — yy
ancient practice, an, ^6
initial punishment, non-existence as, y6
exception, possible, jG
payable, to whom, jy
several responsible, how made up, yy
several victims, how imposed, yy
forfeitures, described, 78
exacted, when, 78
imprisonment, described, 72 — y6
object of, original, 72
do. , for three or four years, 72
prisons, condition of, 73
do. , regulations regarding, 73
jailers, position of, 74
escape, liability for, 75
ill treatment by, how punished, 75
prisoners, treatment of, 73
wearing of fetters by, 74
iron bar, described, 71
penal servitude, described, 6y — 68
domestic servitude, forms of, 68
military do. , do. , 68
transportation, described, 64 — 6y
distance, calculation of, 65
further term, when imposed, 66
lord or parents, transportation at request
of, 66
665
Punishment [contd.)
wife of transported offender, how dealt
with, ^'j
Countenanced but not legally recognised, j8 — 80
castration, when, 80
how inflicted, 80
exposure until death, described, 78 — 80
illegal, why resorted to, 79
inhuman, yet justifiable, 79
Undue punislinieiit, 80 — 82
considerations touching, 80
animus, an important point, 80
strife or anger, result of, 81
vulnerable part, punishment on too, 82
Punishments, Board of (v. Jtidiciary Board)
Rape, 359—366
essentials to constitute, 359
penalty, 361
scope of offence, 359
attempted, 364 — -^66
'child', definition of, 365
cutting and wounding, 364
fumbling, where merely, 364
miscarriage, causing, 365
children, distinctions touching, 362
ten years of age, under, 362
twelve do. , do. , 362
consent, considerations touching, 360
misconduct, effect of victim's previous, 361
mourning, during a period of, -^66
officials, by, 366
successive rape, '^^6'^^ ^
attempted, 365
exhaustion, victim dies from, 16'i)
murder, aggravated by, '^^6^
penalty for, i^-i^
666
Rape {contd.)
successive rape, what, 363
Rebellion (v. Treason, etc.)
Receivers of stolen property (v. Larceny)
Relationship, 143 — 216
a curious subject, 143
not easy of concentration, 143
wide-reaching importance of, 146
reason of, 145
degrees of, 144 — 145
mourning worn for whom, 144 — 145
perplexing in number, 144
General influence, 1^6 — t^j
between seniors and juniors, 146 — 148
in cases of injury and killing, 146 — 148
between juniors and seniors, 148 — 153
in cases of injury and killing, 148 — 149
junior in an unpleasant position, 148
bringing a charge, 149 — 150
in cases of strife, 150
do. do. theft, 151
do. do. responsibility for crime, 151 — 152
do. do. attending the Examinations, 153
ignorance of existence of, effect of, 151
(v. Brothers; Fathers atid Mothers-in-law etc.;
Husband and Wife ; Master and Pupil ; Master and
Servant and Slaves; Parent and Child; Uncles and
Annts etc.; Wet-mirse and child — also substantive
offences, Assaidt, Homicide, Larceny, etc. etc.)
Religion, and offences against, 521 — 540
law concerning is rather scanty, 525
persuasions recognised, 521
Buddhism, position of, 522
Confucianism, do. , 522
State Ritual, described, 522 — 523
'by law established', in a sense, 522
667
Religion, ETC. {contd.)
Taoism, position of, 522
toleration, the Chinese State view regarding,
explained, 523
objections to foreign creeds based on the law, 524
and enforced according to law, 525
(v. specific offences — Dead, offences against the;
Heresy ; Religious procedure, offences against ; etc. etc.)
'Religious', meaning of, in Chinese Law, 84.
Religious procedure, offences against,
529—532
gist of offence, 529
is danger to the State, 529
for example, 529
varieties of, 530 — 532
Imperial sacrifices, concerning, 531
violation of oath of abstinence, etc., 531
pilgrimages, organising, 530
Salvation Army would be in danger, 530
private incantations, practising, 530
Rescue, 514 — 516
grave offence, a, 514
numbers of rescuers, distinctions regarding, 515
prisoner rescued, do. do. , 515
whether already committed to custody by
Court, 515
or previous thereto, 515
rescuer, position of, distinctions regarding, 516
Resisting arrest, 516 — 520
offence of offender resisting, distinctions regard-
ing, 517—518
whether an offence has been committed or
not, 517
distinctions regarding, 517
ordinary person, resisting an, 517
categories of ordinary persons, 517
668
Resisting arrest [contd.)
distinctions taken from larceny illustrating, 5 1 8
peace officer, resisting a, 517, 519
may be less serious than to resist an ordinary
person, 519
reason for, 520
Responsibility for death, indirect (v. Homicide)
Responsibility for occurrence of crime, Intro.
pp. LXX — LXXII
characteristic evil, a, LXX
limitations on doctrine, attempts to place, LXXI
Revision, 22 — 29
Generally, 22 — 27
approval of sentence, 23
circulars, 26
circumstances to be submitted in detail, 24
disapproval of sentence, 23
doubt as to what article applies, 26
doubt whether mitigation allowable, 25
firmness of Board in upholding decision, 27
judgment contrary to evidence, how treated, 25
judgments, false, how treated, 25
justificatory circumstances, consideration of, 24
mitigation, power of recommending, 24
opposition of Board to his Imperial Majesty, 27
penalty incorrect, how treated, 23
Provincial Authorities, attitude of, 23
do. , tersely dealt with, 24
report to Board, 22
theory of Board differs from evidence
submitted, 25
unprecedented features, how treated, 26
Revision of capital sentences, 27 — 2g
procedure concerning, 28 — 29
submission of, 28
'At the Autumn Assize', 28 — 29
669
Ridicule, Chinese system not a subject for,
Intro, p. Lxxii
Riot, etc., 452 — 454
crowd, what is a, 452
disturbance, calculated to create ; treatment
when, 453
official authority, assemblages in forcible opposition
to, 453
numbers, effect of, 454
official, effect of killing or wounding an, 454
riot, distinctions regarding, 452
a question of aggravation, 452
unarmed gathering of rowdies, treatment of, 453
mitigation, where subject to, 453
unlawful assemblages, distinctions regarding, 452
River embankments, damaging, 48 g
Roman Law, analogy between Chinese and,
App. II
not to be pressed too closely, App. II
Sacrilege, 532—533
extraneous considerations touching, little regard
paid to, 532
varieties of, 532
altars or mounds, damaging or destroying, 553
do. do. , gateway to, do. , 553
Imperial sacrifices, larceny of articles used in, 532
discarding or destroying such articles, 532
Salt watcJiers, Private (v. Police etc.)
Sedition, 473 — 476
penalty for, 474
what, 473
comprehensiveness of the term, 474
examples of, 474
merger into another offence, 474
UnlatvfiU societies, ^75
conspiracy bound by oath, phrase for, 476
670
Sedition [contd.)
discountenanced, why societies are, 475
members of, phrase for, 476
treatment of, 475
numbers, a subject for consideration, 475
Self-executiofi (v. Punishment)
Sentences, 19 — 20
determination of, 19
doubt, procedure in cases of, 19
supplementary laws, operation of, regarding, 19
Delivery and record
capital or transportable sentences, 19
record, 20
Execution
grace, days of, 20
period for, 20
capital punishment, 26
corporal do. , 20
transportation, 20
Several offences, commission of, 44 — 48
general rule, 44
curious effect of, 44
gravity of offence, how determined, 45
offences of equal gravity, 46
offences charged at different times, 46
Commission of another offence after sentence
pronounced, ^7 — /j.8
procedure concerning, 47
in transportable cases, 47
strained application of rule, 48
Shun, the emperor, Intro, p. xxxix
Slavery (v. Master and Slaves)
Smuggling, 555 — 557
how considered, 555
treatment of, 555
in general, 555
INDEX 671
Smuggling {contd.)
alum, of, 557
salt, of, 556
salt trade is a monopoly, 556
administration of, 556
tea, of, 557
Societies, Unlawful (v. Sedition)
Soil, encroachment on the. 4.88
Sole Representative, 103 — 106
favour shown, 103
extends to certain cases of homicide, 103
not to grave offences, 104
and loss to be refunded, 105
incongruities arising from plea, 105
provincial investigations, 105
rule regarding, 105
supervision for a period may be ordered, 104
Sole support of aged relative, 106
favour shown, 106
Solicitors, non-existence of, Intro, p. lix
Standard of penalty, Intro, p. lxv
State, offences against the, 463 — 490
distinction between and other offences, 463
not always clear, 463
Imperial Majesty, his; position of, 465
mental classification of, 464
peculiarities regarding, 464
fien tao, explanation of the phrase, 465
(v. specific offences — Sedition; Treason; etc. etc.)
Strikes, 546 — 547
agitating against repair of bunds or embank-
ments, 546
against ordinary repairs, 547
Substitution (v. Larceny)
Suicide (v. Homicide)
Support, sole, of aged relative (v. Sole Representative )
672
Swindling (v. Cheating)
Ta Ch'ing Lu Li, the, Intro, pp. xli^xliii
character of, XLII
commentaries in, XLII
composition of, XLIII
division of laws in, XLlli
mercantile law, slight treatment of, XLllI
precedents unincorporated in, XLII
revised edition of, XLII
Yung Lo, is based largely on system of, XLI
Tang dynasty, the, Intro, p. xxxix
Tartar Banner force (v. Privilege)
Tar tar La w, ap plica tion of to the Eighteen
Provinces, hitro. p. li
Theatrical offences, 564
acting not discouraged, 564
limitations concerning, 564
but not a very honourable profession, 564
disabilities of actors, 564
Tipaos (v. Police etc.)
Torture, 17 — 19
allowance made for in assessing punishment, 18
exemptions from, 18
illegal, how justified, 17
legal instruments of, 17
underlings, employment by, 18
varieties of, 17
when permissible, 17
Trade combinations, etc., 545 — 546
are not permissible, 545
penalty for, 545
clause concerning, 545 — 546
corners are not permissible, 546
bread-stuffs, a corner in, 546
Treason, etc., 466 — 468
High treason, varieties of, 466
673
Treason [contd.)
penalty for, 466
Christians, treatment of, 467
relations, effect on, 466
children, in case of, 467
wife, in case of, 467
if of an elder brother, 467
Rebellion, definition of, 467
overt act in furtherance of, effect of, 468
penalty for, 468
relations, effect on, 468
confrontation, lengthy detention for, 468
grave cases, in, 468
Misprision of treason, varieties of, 468
high treason, of, 468
rebellion, of, 468
Treasure-trove, 490
import of, 490
general procedure concerning, 490
special do. do. , 490
Trusts, 587—600
ancestral worship, property subject to condition
of. 59I' 593. 595
is in some sort entailed, 597
precatory trusts, 598
intention, in construing; common-sense will be
presumed, 598
interpretation of, instance of, 591
religious or charitable trusts, 587 — 592
object being carried out trust will still be
maintained, 587
record of, on stone tablet; efiicacy of, 588
sale of trust property, 589 — 598
ancestral worship, conditioned to, 593 — 598
bona fide purchaser for valuable consideration
without notice, position of, 589 — 592
c. E. G. 43
674
Uncles and Aunts, Nephews and Nie-
ces, 198 — 200
killing or severely wounding an uncle or an
aunt, 198
in self-defence, 199
killing a nephew or a niece, 199
doubt herein, 200
Undue Pitnishrnent (v. Ptinishment)
Unnatural offences, 368 — 369
distinctions regarding, 368
leniently treated, why, 369
sex, no distinctions as to, 368
Usury and Debt, 550 — 554
interest, what, allowable, 550
penalty for exceeding, 551
recovery of debt, procedure for, 551
limitations upon creditor, 551
may not personally seize either debtor or
his property, 551 — 552
where dealer fails to pay his constituents, 553
instance of, 554
gambling debt incurs no legal liability, 554
Ward elders (v. Police etc.)
Water, rights of, s74
artificial reservoir, larceny from an, 574
Weights and Measures, 549
requisites for validity, 549
examined, to be officially, 549
sealed, do. do. , 549
standard, do. conformable to, 549
responsible officials, duties of, concerning, 549
Wet-nurse and child, 215 — 216
a one-sided relation, 215
causing death of child, 215 — 216
do. injury to do. , 216
675
Witchcraft, 565 — 566
aggravation, as an element of, 566
penalty, mode of gauging, ordinarily, 565
writing books upon, in case of, 565
Women, 106 — 108
favour shown, 106
when excluded, 106
licentious women, 107 — 108
may be bambooed, 107
may commute cangue for scale, 108
Works for study, list of, App. Ill
Wrecking (v. Larceny)
Yao, the Emperor, Intro, p. xxxix
Yij, THE Emperor, id.
Yuan DYNASTY, the, id.
ERRATA AND ADDENDA
91
n
9
128
n
27
138
n
24
322
n
19
324
w
14
548
n
18
p. 23 line 4 for A read ^
Ch'ung read Yiin.
'of a junior' read 'by a junior',
'hurt' read 'killed'.
He read Ha.
'case' read 'cases'.
18 add "Mining law varies much with
"the locality, and in the districts
"proposed to be developed is in
"a stage of transition."
„ 555 „ 12 after 'advantages' insert "The treat-
"ment of smuggling varies much
"with the locality, and numberless
"local regulations are drawn up
"for its repression."
Introduction § 28, page LXVI line 5 ^t/ie" parricide".
Take out the word '^the\
In addition to which there are various obvious
spelling and typographical errors.
'->(T-
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